For the past little while I’ve been seeing more cases and articles related to advertising challenges based on misleading (or allegedly misleading) first impressions – that is competitor or consumer challenges based on what looks like the real deal, but may be a bit of image or headline claim sleight of hand.
I’m talking about the recent POM Wonderful LLC (“POM”) victory against Coca-Cola where the U.S. Supreme Court recently held that POM could indeed challenge its pomegranate drink competitor for alleged violations of the U.S. Lanham Act (a very interesting decision that I finally got around to reading this morning – see: POM Wonderful LLC v. Coca-Cola Co.); increasing debate about whether photo-shopped advertising should be banned or regulated in the United States; and then this morning what I thought was a very interesting comment on a potential lawsuit by the Center for Science in the Public Interest (“CSPI”) against Campbell Soup Company for alleged false marketing claims for its V8 Splash and V8 V-Fusion Refresher drinks (see: here).
What do these fruit drink advertising cases, and in the case of the photoshopped advertising debate, have in common? Each raises the question of when the first impression (or as its referred to in Canada, the “general impresson test”) of advertising is so misleading as to violate misleading advertising laws (though claims may be technically true).
In the Campbell Soup fruit drink matter, which may I gather lead to litigation, the CSPI has taken issue with the difference between the technical juice content of several Campbell fruit drinks and fruit-loaded imagery on drink labels:
“Regardless of their actual juice content, V8 Splash and V8 V-Fusion Refreshers have labels that are festooned with pictures of fruits and vegetables. Graphically, the labels are quite similar to those of V8 products that are 100 percent juice. Campbell even markets the drinks as nutritionally equivalent to fruits and vegetables, boasting about the drinks’ antioxidant content, and encouraging consumers to “enjoy the many benefits that come from getting the recommended servings of vegetables every day.” Yet V8 V-Fusion Refreshers only contain 20 to 25 percent juice, and V8 Splash drinks only contain between five and 10 percent juice. The latter drinks also include artificial food dyes, high-fructose corn syrup, and sometimes artificial sweeteners such as sucralose or acesulfame potassium.”
In the recently decided POM-Coca-Cola case, the U.S. Supreme Court was primarily tasked to decide whether U.S. FDA labelling regulations acted as a bar to POM’s misleading advertising suit against Coca-Cola (the Supreme Court appeal was largely about which laws governed), which it held were not. In doing so, it also commented however on the apparently large divide between the technical juice content of Coca-Cola’s “pomegranate blueberry” drink and the headline claims on Coca-Cola’s pomegranate juice labels:
“POM competes in the pomegranate-blueberry juice market with the Coca-Cola Company. Coca-Cola, under its Minute Maid brand, created a juice blend containing 99.4% apple and grape juices, 0.3% pomegranate juice, 0.2% blueberry juice, and 0.1% raspberry juice. Despite the miniscule amount of pomegranate and blueberry juices in the blend, the front label of the Coca-Cola product displays the words ‘pomegranate blueberry’ in all capital letters, on two separate lines. Below those words, Coca-Cola placed the phrase ‘flavored blend of 5 juices’ in much smaller type. And below that phrase, in still smaller type, were the words ‘from concentrate with added ingredients’ – and, with a line break before the final phrase – ‘and other natural flavors’. The product’s front label also displays a vignette of blueberries, grapes, and raspberries in front of a halved pomegranate and a halved apple.”
While neither of these fruit drink advertising cases have been decided on their merits (though it doesn’t seem to be looking very good for Coca-Cola), I thought they illustrated very well one of the most important (though basic) principles in advertising law: first impressions matter, a lot.
In the advertising law world, whether in the United States or Canada, I think it’s fair to say that consumers aren’t lawyers, fine print or “boilerplate” is certainly not a cure for misleading claims in many instances and it is always important to consider not only the technical truth of claims but the likely first impression for consumers (and based on recent Canadian case law developments, likely not very sophisticated consumers).
In this respect, both the civil and criminal misleading advertising provisions of the Competition Act allow misleading advertising claims (whether brought by the Competition Bureau or private plaintiffs, in the case of intentionally misleading claims) where claims are either literally false or the “general impression” of a claim is false or misleading.
As such, as I said above, it is a very good practice for marketers, their agencies and counsel to critically look at advertising to determine not only whether all claims are true (and can be substantiated), but whether any of the headline claims, photos, images or other aspects of the marketing may be reasonably said to be misleading.
For those of you that have been around this track with your advertising lawyers before, this may seem like a basic and obvious exercise. But, as is seen time and time again, courts, enforcement agencies and civil plaintiffs pay a lot of attention to first impressions.
A few other practical tips?: Ensure that headline claims can stand on their own; take reasonable steps to ensure that images and photos match textual claims; if qualifications (i.e., the “fine print”) are necessary, include the critical stuff close to the primary claim(s); and, perhaps most importantly, stand back and take a couple minutes (probably at most) looking over your draft creative to ask yourself whether anything key creates a false or misleading “general impression”.
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