The National Advertising Division recently told Dr. Pepper Seven Up, Inc. that advertising for its 7UP PLUS soda, which is made with real fruit juice, was misleading because of the real fruit that was shown.
The National Advertising Division of the Council of Better Business Bureaus (“NAD”) is the advertising industry’s main (and very influential) self-regulatory organization. It not only hears challenges to advertising that are brought to its attention by competitors and others, but it also has its own monitoring program where it identifies advertising (as it did here) with potential truth in advertising concerns.
Fruit juice?
The television commercial challenged by the NAD shows, among other things, a large amount of fruit flowing in a stream of water and a still shot of several 7UP PLUS products surrounded by a pile of fruit. A variety of types of fruit are shown. The commercial describes the product as having “real fruit juice.” A disclaimer in the spot reads, “These products contain 5% apple juice from concentrate.”
The NAD said that showing all of that fruit, even with a disclaimer, communicated that 7UP PLUS contains a large amount of fruit juice, not just the five percent that is actually included. The NAD also said that showing different types of fruit was problematic, since the only actual fruit juice (as apposed to flavoring) present in 7 UP PLUS is apple juice from concentrate. In its decision, the NAD recommended that Dr. Pepper Seven Up, Inc. revise the advertising so that it would not communicate the message that 7UP PLUS contains a substantial amount of fruit juice. The NAD also recommended that the advertiser include a more prominent disclosure about the actual fruit juice that is in the product. Although Dr. Pepper Seven Up, Inc. told the NAD that it disagreed with the NAD’s conclusions, it agreed to take the NAD’s recommendations into consideration.
Implied claims . . . from fruit?
If you have been reading this column regularly, you know that when creating advertising, you are responsible for ensuring that both the express and the implied claims that are made in advertising are truthful and substantiated. Here, the problem was not really with the express claim; the soda does actually contain real fruit juice.
The key problem identified by the NAD was that some of the creative techniques used — the pictures of fruit that were shown — may have communicated implied claims about the fruit content of the soda which weren’t true. When you are planning to illustrate a product attribute (such as showing pictures of fruit to illustrate the fact that the product contains real fruit juice or fruit flavors), you have to be careful, then, before beginning production, to identify what implied claims may be communicated. Even humorous or non-realistic illustrations may communicate specific information about a product. If actual claims are communicated, even implied claims, then you must ensure that you have sufficient proof to back them up. And, be careful about disclosures. It is very difficult to correct a misimpression that is caused by exciting visuals just by including a super.
The lesson to learn from the NAD’s decision here is that it’s not enough to worry about the words that are used. As the saying goes, a picture is worth a thousand words. So, look carefully at the visuals — including photographs, animation, and special effects — to make sure that you can back up any implied claims that are made. Taking this extra step should really help you avoid legal challenges to the fruit of your labors.
This column presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
Jeffrey A. Greenbaum ESQ. is a partner at Frankfurt Kurnit Klein & Selz, New York. If you have a suggestion for a topic to be covered in a future column, send an e-mail to jagreenbaum@fkks.com
