May 13, 2020 | less than a minute read

NAD Wrestles with Tension Between Monadic Pet Food Product Formulation Claims and Implied Health or Safety Comparisons to Other Products

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John Feldman

Partner

Get in touch

John Feldman

Partner

The National Advertising Division (NAD) issued an important case last month. It’s notable for the directness with which it addresses an issue that arises a lot in the food (both human and pet) area: How can an advertiser talk truthfully about an ingredient (or lack thereof) that pertains to health or safety in a monadic claim without implying that competitive products that differ with regard to that ingredient are unhealthy or unsafe?

This can be treacherous territory for an advertiser. It has every right to communicate the ways it has improved its product or that it has added, subtracted, or substituted certain ingredients. But unless it has a reasonable basis for the implied comparative claim that the change in formulation makes its product meaningfully healthier or safer for humans or pets, as the case may be, the advertiser may be constrained as to how aggressively it can tout to consumers the formulation's health or safety benefit.

NAD determined that the claims, “no more nasties” and “bye bye bad stuff” cannot be considered puffery because these claims describe the pet food being removed from Petco (but sold by its competitors) in language that clearly matters to consumers. Consumer preference evidence showed that dog and cat owners care and are concerned about artificial ingredients in dog and cat food and treats. However, NAD noted that the advertiser did not submit evidence comparing the health benefits of dog or cat food containing artificial ingredients to those that do not have artificial ingredients (or their nutrition profiles), or that pet food containing these artificial ingredients is, in fact “bad” for (or should not be consumed by) pets. Consequently, NAD recommended that Petco discontinue its characterization of artificial ingredients (i.e. as contained in other pet foods or carried by its competitors) as “nasties” or “bad stuff” and related imagery as to such pet foods in its video advertisement. NAD noted, however, that nothing in its decision precludes the advertiser from accurately communicating that Petco listened to consumers and responded to their preferences and concerns via an ongoing initiative to remove certain artificial ingredients from its shelves.