Personally, we knew there were problems with this claim before NAD did. We are big fans of the sweet taste of Fruity Pebbles (along with Cap’n Crunch and Smacks).  When Malt-O-Meal claimed it was the “National Taste WINNER Fruity Dyno-Bites Preferred over Post Fruity Pebbles,” we were, shall we say, dubious. (As an aside, there is a blessing and a curse to the practice of an advertising lawyer in that we are both advising about claims and often the intended audience and consumers of these same claims. Sometimes this means we are better informed and actually have a “reasonable consumer” perspective. And sometimes we are just biased in favor of products we like!

The NAD decision starts with a nice reminder of the gold star basics as outlined in the ASTM Standard Guide for Sensory Claim Substantiation for taste tests —double blind use of paired comparisons, a geographically representative sample size (using at least two markets in each of the four census regions), similarly purchased products (including similar expiration dates), presentation of the tested products in substantially the same manner and prepared according to the instructions, and allowance for cleaning of the palate before tasting each product, producing statistically significant results.

The biggest issue from the case was the discussion of whether it is appropriate to survey the audience who eats your product or the target audience of your ad. Here, there was evidence that the majority of fruity and chocolaty cereal eaters were under 35. But the survey sought only the views of those between 30 and 64. The advertiser explained the claims at issue were presented in ads directed at adult purchasers of the products who shop for their families.  NAD concluded that proper taste tests should sample consumers who customarily use the products that are being compared.  The advertiser is appealing this decision as essentially requiring testing of kids even if the product is normally purchased and consumed by adults.

The NAD also expressed significant concern that there was only one test market ?in the Northeast (“NE”), a “significant deviation” from industry practice.  The advertiser is also appealing this ruling by asserting it tested a large number of people in ten different areas in proportion to where the products are sold. In other words, these products are not as widely sold in the NE and so using one test location here made sense.

Stay tuned as to whether these arguments are appealing to the NARB and for further NARB precedence on taste claims.