Omission of packaging in commercial is an artistic choice, says NAD
Out of the Bag
Three seconds of a one-minute commercial clip stirred up trouble for two food production companies.
In those three seconds, Tyson Foods, makers of the advertised Hillshire Farm Ultra Thin Oven Roasted Turkey Breast, depicted slices of its product being removed from its packaging without an inner plastic bag, even though the product traditionally is packaged in a plastic bag.
Kraft Heinz challenged the advertisement at the National Advertising Division (NAD) and alleged that the depiction of a bagless Hillshire product conveyed the freshly sliced deli appearance of its own product. Kraft Heinz's Oscar Mayer cold cuts are packaged in a clear plastic tub without a bag, allowing the consumer to see the product clearly and associate it with the deli-fresh meat that Kraft Heinz alleges consumers prefer. Kraft Heinz alleged that the Oscar Mayer packaging is patented and required an investment of significant resources and time on Kraft Heinz's part. Thus, according to Kraft Heinz, Tysons' imitation of the packaging in the commercial was intended to procure competitive benefit that it had not earned.
Marketing how the sliced turkey looks within a product package may seem to be a straightforward process, but NAD's review hinged on artistic license. NAD maintained that advertisers are allowed such license when depicting their product, provided that "they do not, directly or by implication, mislead consumers with regard to a material attribute of the performance of the product."
In this decision, NAD put itself in the shoes of consumers because there was no consumer perception evidence presented. NAD determined that the commercial did not depict the Hillshire product as fresher or more delicious than Oscar Mayer cold cuts.
This decision marks a victory for Tyson Foods, who received NAD's approval of the advertisement based on artistic license. Nevertheless, this decision is an example of how closely NAD will evaluate and toe the line between what is considered misleading advertising and what is merely creative use of artistic license. Brands and advertisers should continue to exercise caution when casting a positive light on their product that they cannot guarantee will be passed to the end consumer.