No, this is not a blog post about reproductive rights. (Don’t get me started.) Rather, it’s about a new NAD decision concerning an advertiser’s claim to offer “more choices” than its competitor. The decision goes deep into the weeds of the parties’ offerings, how an advertiser should communicate them in an e-commerce context, and what implied claims are conveyed by words like “choice” and “flexibility.”

At issue were claims by Home Chef for its meal kit delivery service. Home Chef’s competitor, Hello Fresh, challenged a laundry list of both express and implied claims, including Home Chef’s claims for its “Customize It” feature and claims about customers having more choice and flexibility with its service than with Hello Fresh. Also at issue was Home Chef’s claim to be Rated #1 in customer satisfaction.

With respect to the Customize It claims, NAD found that they overstate the extent and amount of customization Home Fresh offers, even in a monadic context. Interestingly, NAD focused specifically on the experience of the “logged out” consumer, recommending that the advertiser make clear to unsubscribed (potential) consumers that (1) its Customize It feature is limited to select meals bearing the Customize It badge; (2) Home Chef, and not the customer, determines which option(s) will be presented, as the default; and (3) customers may select just one customization option. NAD also recommended that details of the feature be made available to logged-out customers “upfront and prior to signing up” and that Home Chef make it clearer that certain options, like "doubling the protein," have limited availability and cost extra. Although focused on the experience of the logged out consumer, NAD also cautioned Home Check to “be mindful to provide the same clarity to is subscribers.”

NAD further recommended modifications to Home Chef’s claims about “choice” and “flexibility,” finding that, in the comparative numeric context presented, consumers could reasonably interpret "choice" in a way that would overstate the difference between the two services’ offerings. However, it did find that Home Chef has a reasonable basis for its claim that, with its Customize It feature, it offers more flexibility and freedom than HelloFresh.

With regard to Home Chef's "Rated #1 in Customer Satisfaction" claim, NAD recommended that the claim be modified to make clear that it “is based solely on a customer satisfaction survey of Home Chef customers' experiences with the advertiser's service and avoid the implication that customer satisfaction was directly measured and compared between the parties' respective services.” Interestingly, although NAD found that Home Chef made an effort to visually separate its Rated #1 in Customer Satisfaction claim from its “Why Customers Love Us” claim that states specific objective measures (variety, flexibility, value), NAD didn’t think the advertiser made that separation clear enough to avoid the takeaway that the Rated #1 claim was based on those objective measures.

While the Decision addresses very specific claims in a very specific context, there’s good learning for other e-commerce marketers: namely, it’s important when designing functionality for a site to be mindful of what a customer sees both before and after logging in and, of course, before and after, paying for the service. Also, advertisers should certainly keep in mind that even their monadic claims can attract the attention of a competitor and, if challenged, will be examined both for their express and their implied meanings and whether all such meanings are reasonably supported.

Relish Labs, LLC d/b/a Home Chef (Home Chef Meal Kit Delivery Service), Case #6332, NAD/CARU Case Reports (December 2019).