The ketchup wars between Kraft Heinz and Unilever continue. In the latest battle, the National Advertising Division (“NAD”) issued a decision on Kraft Heinz’s challenge to Unilever’s comparative advertising.
Kraft Heinz claimed that Unilever falsely disparaged other ketchup brands by implying—in its advertising for Hellman’s Real Ketchup—that ketchup made without High Fructose Corn Syrup (“HFCS”) was more “real,” “healthier,” and “better for you.” Kraft Heinz also challenged social-media-influencer posts, paid for by Unilever, that cautioned consumers to stay away from HFCS-containing ketchup because it is “evil” and “fake.”
NAD recommended that Unilever discontinue the following claim on its website: “As we watched the foods we eat evolve and be better for us, we noticed that ketchup had not kept up. So we decided to change that. Our ketchup is made with only simple, high quality ingredients.” Although NAD recognized that the term “better” can sometimes be justified as subjective puffery, it held that in this case, the “better for us” phrase in Unilever’s advertising could be reasonably interpreted to mean that Hellmann’s Ketchup was comparatively healthier than other ketchups—a claim unsupported by the record.
Kraft Heinz also challenged Unilever’s product label, which displayed “No High Fructose Corn Syrup” next to the product name, Real Ketchup. Kraft Heinz argued that consumers would think that Hellmann’s was saying that its product was “real” because it contained no HFCS (and that ketchups that do contain HFCS are not real). NAD disagreed. Because “No High Fructose Corn Syrup” was displayed in a different font and encased within a circle, NAD concluded that it was visually separated from the rest of the label and did not convey the message that the product was “real” because it had no HFCS.
Unilever distanced itself from its paid Instagram posts—in which influencers stated that Hellmann’s Real Ketchup was “better-for-you” and “healthier” in comparison to other ketchups, and that ketchups containing HFCS were “evil” and “fake”—asserting that the statements were rogue and did not comport with its intended marketing message. Unilever thus represented that it would voluntarily modify those posts/statements.
Further, Kraft Heinz challenged Unilever’s “Moms prefer to serve their children Hellmann’s Real Ketchup over Heinz Original Ketchup” statement as an unqualified preference claim, unsupported by Unilever’s own survey. The survey included over 1,000 parents, most of whom were moms. The participants were shown product ingredient lists from Hellmann’s Real Ketchup and Heinz Original Ketchup, but without being told the brands involved, and sixty-six percent chose the ketchup that turned out to be Hellmann’s. As a result, Kraft Heinz argued that the survey failed to support Unilever’s statement that moms preferred Hellman’s over Heinz, since the participants based their picks on blinded ingredient lists and didn’t know what ketchup they were picking. But NAD disagreed. In fact, NAD emphasized that it considers the blinding of comparison surveys to an important way to reduce potential bias.
NAD agreed with Kraft Heinz, however, that the challenged statement nonetheless went beyond what the survey supported, and that consumers might take away a broader message—that moms prefer Hellman’s over Heinz based on Hellman’s taste, or just that moms prefer Hellman’s over Heinz (period). Accordingly, NAD recommended that Unilever narrow the claim to clarify that it was based solely on the survey participants’ review of blinded product ingredient lists.
Finally, NAD rejected Kraft Heinz’s assertion that Unilever’s testimonial “The Best Ketchup I’ve Ever Tried,” which was accompanied by a disclaimer identifying the name of the person providing the testimonial and an explanation that it was based a free product sample, amounted to an objective claim concerning overall taste superiority. NAD concluded that it was apparent from the testimonial’s wording that it was the individual opinion of a consumer who had received a free product, and thus did not convey the message that other consumers would have the same experience (which would have required