Goose and Belvedere Battle Over Vodka Ratings
National Advertising Review Board (“NARB”) has ruled that
advertisements claiming Grey Goose® Vodka is “Rated the No.
1 Tasting Vodka in the World” are deceptive because they provide
“an unfair and inaccurate representation as to a competitor’s
product, and did not provide consumers with a complete factual picture.”
The case, brought by the importer of Belvedere® Vodka, did not claim
that the 1998 Beverage Testing Institute (“BTI”) taste
test showing Grey Goose on top of the ratings with a score of 96 was
incorrect. Instead, Belvedere claimed that listing of its score of
74 was unfair because subsequent testing since 1998 by BTI showed Belvedere
scoring 91 and 92.
NARB decision recommends that Grey Goose’s importer, Sidney Frank
Importing Company, either discontinue the comparative reference based
on Belvedere’s score in the 1998 testing or include Belvedere’s
most recent score. However, in a statement published by the JustDrinks.Com
website, Sidney Frank said it would continue to use the advertising
because the NARB decision conflicts with the policies of the BTI which
prevent advertisers from making comparisons to different taste tests
because such cross test comparisons are invalid. If the Grey Goose
ads continue as written, the NARB can choose to ask the Federal Trade
Commission or the Bureau of Alcohol, Tobacco and Firearms to enforce
Note: Companies that choose to conduct comparative advertising campaigns
must be vigilant to formulation changes by competitors or subsequent
taste tests as those changes can make the advertised taste claim no
longer valid. Please contact us if you have any questions on how to
structure your comparative advertising claims.
Ad Runs Afoul of Children’s Advertising Guidelines
discontinued a television commercial for its Eggo® Homestyle Waffles
after the Children’s Advertising Review Unit (“CARU”)
of the National Advertising Division (“NAD”) of the Better
Business Bureau ruled that the theme of the commercial was inappropriate
for young children. In the commercial, an adolescent boy eating the
waffles bullies a puppet after the puppet commented, “It’s
nice to share.” The CARU objected to the ad because the bullying
behavior which included pushing the puppet under the table, tying the
puppet’s shirtsleeves and shoelaces together, and pulling the
puppet’s legs over his head, was easily duplicable by an older
sibling to a younger one, thereby violating Principle 5 of its guidelines
urging advertisers to portray beneficial social behavior.
Rescinds Olestra Labeling Requirements
FDA has repealed a seven year-old rule that required warning labels
on products containing the zero calorie fat substitute Olestra®.
Olestra was approved by the FDA in 1996 for use in savory snacks like
potato chips, cheese puffs and crackers. Under the old rule, manufacturers
were required to inform consumers that Olestra may cause abdominal cramping
and loose stools in some individuals, that it inhibits the absorption
of vitamins A, D, E and K and that these vitamins have been added to
compensate for Olestra’s effects on these nutrients.
changed its position based on a scientific review of post-market studies
and adverse incident reports. The post-market studies showed that “real
life” consumption of products containing Olestra caused only
infrequent and mild gastrointestinal effects and that consumers were
confused by the message contained in the warning.
STUDY CONFIRMS THAT TRANS FATTY ACIDS ARE VERY BAD AND LACK ANY REDEEMING
Labeling Regulations Coming Your Way
National Academy of Science has released a report confirming earlier
studies that trans fatty acids in food present a significant health
risk for coronary disease. The publication of the report will probably
cause the FDA to speed up issuance of its long pending proposal to require
mandatory labeling of trans fatty acids.
fat is created when vegetable oils are partially hydrogenated. An estimated
40% of all processed food products contain trans fatty acids including
baked goods, snacks, candy, dairy products, and meat. The report concluded
that there is no safe level for trans fat consumption and that trans
fat had no positive dietary benefits.
FDA published a proposed rule on trans fat labeling in November 1999.
(The public comment period ended in 2000.) The rule is currently
scheduled to be issued in final form by September 2003. Under the
proposal, references to trans fat will have to be included in the “Nutrition Facts”
required by the NLEA. The proposal also includes limits on both health
and nutrition content claims based upon the amount of trans fat in a
food. For example, a low cholesterol claim could only be made if a serving
of a food contains 2 grams or less of saturated and trans fat combined
instead of 2 grams or less of saturated fat as permitted by the current
rule. Foods that have more than 4 grams of saturated and trans fat combined
per serving could not make any on-label health claims. The labels could
still make nutrient content claims, for example a “good”
or “excellent” source claim if a special legend is included
on the PDP.
FDA believes that adoption of the proposed rule will prevent 6,300 to
12,800 cases of coronary heart disease annually and 2,100 to 4,200 deaths
annually with much of the reduction resulting from food processors reformulating
their products to reduce or eliminate trans fat from their ingredients.
Although one professor at the University of California Medical School
has compared trans fat to nicotine, given the ubiquitousness of trans
fat in the food supply an outright ban seems unlikely.
many manufacturers of food products containing trans fatty acids will
now start to think a lot about the advantages and disadvantages
of reformulating their products. Similarly manufacturer’s
of products that contain little or no trans fatty acid may see
the new labeling requirements as a marketing opportunity.
Zackler & Associates provides
proactive expert legal advice on FDA, USDA and other labeling requirements
as well as on and off label marketing issues. We can review with
you how the proposed FDA trans fatty rule will affect the current
labeling and marketing of your products and help you develop strategies
to comply with the rules as well as use them to your commercial
advantage whenever possible.