Perdue Farms, Inc., plans to appeal a recent decision by the National Advertising Division (the NAD) recommending that the advertiser modify or discontinue ads touting organic farming methods used to raise chickens.

Tyson Foods, Inc., challenged broadcast and YouTube ads for Perdue’s Harvestland Organic chicken products, characterizing the ads as an “organic-washing” campaign that was likely to mislead consumers into believing that all Perdue products come from chickens that are raised organically. In reality, less than 2 percent by dollar amount and 0.7 percent by volume of all the chickens raised and sold by Perdue are sold under the Harvestland Organic brand, which is the only brand that accurately reflected the claims at issue, Tyson said.

The challenger also faulted the ads for creating the impression that Perdue’s chickens are “happy” and treated humanely, when the accommodations depicted in the ads are limited to the Harvestland Organic line of products and do not extend to all of Perdue’s chickens.

Perdue countered that the ads did not constitute a line claim, pointing out that the Harvestland Organic logo was prominently displayed and arguing that the use of the term “Perdue” in the ads was not inherently misleading. In support of its position, the advertiser submitted a consumer perception survey.

The NAD considered the advertising at issue. The “Free Range” commercial opened with a shot of the “Perdue Crew,” consisting of Perdue founder Jim Perdue and his two sons, all dressed in clothing displaying the Perdue logo. The first half of the ad depicted Jim doing things the old-fashioned way (hailing a taxi and paying with cash, for example) in contrast to his modern sons (shown using a ride app and paying with a mobile device).

During the second half of the ad, the trio arrives at a barn with the Perdue Harvestland Organic logo on the side while the sons talk about “organic free-range chickens” that are “non-GMO, 100 percent vegetarian-fed, raised with no antibiotics, ever” as chickens are seen roaming around a sunny field. The Perdue general brand logo is displayed, which then flips to the Perdue Harvestland Organic logo as the voiceover states: “Perdue. Raising more organic chickens than anyone in America.” The Perdue Crew walks away as Jim suggests using hashtags such as “hashtag organic” and “hashtag happy.”

The NAD began with its concerns about the advertiser’s consumer perception survey. A review of the open-ended questions revealed that only five respondents out of 325 mentioned the Harvestland Organic brand, with “substantially more” respondents taking away a message about the Perdue brand generally. The survey results also demonstrated an 18.5 percent net confusion rate, the NAD noted, and while no hard and fast rule exists regarding the specific percentage that demonstrates confusion in a consumer survey, similar outcomes have been found to demonstrate consumer confusion.

In the absence of reliable consumer perception evidence, the NAD independently evaluated the messages conveyed by Perdue’s advertising to determine whether the ads communicated a line claim. Factors considered by the self-regulatory body included the use of general brand references in the advertisement and whether the copy effectively limited the applicability of the claim.

“Applying the standard to the facts of this case, NAD determined that a line claim was communicated and that consumers may understand all of Perdue’s chickens to be organic rather than only the ones it offers through its Harvestland Organic sub-brand,” according to the decision. “The commercials feature numerous visual and verbal general brand references to Perdue, while presenting only momentary visual references to Harvestland Organic, the sub-brand to which Perdue’s organic claim pertains. In addition, neither of [the television] commercials call out the Harvestland Organic sub-brand by name, although the voiceovers in each clearly state the general claim, ‘Perdue, raising more organic chickens than anyone in America.’”

Because the only indications that the commercial pertained only to the Harvestland Organic brand were brief visual appearances of the Harvestland Organic logo, the copy did not effectively limit the applicability of the claim, the NAD added. These “fleeting displays” of the logo were “not sufficient to overcome the commercials’ many visual and audio references to the Perdue brand generally, which reasonably convey the unsupported message that all of Perdue’s chickens are raised organically.”

The NAD was less troubled by the claims on Perdue’s website, which featured a subsection called “Which Perdue Products are Organic?” where the advertiser “clearly and simply” displayed its organic product offerings. “Considered in context, NAD determined that consumers who visit Perdue’s webpage are unlikely to take away a message that all of Perdue’s products are raised organically,” the NAD wrote.

Perdue should discontinue the challenged commercials or modify them to make clear that the advertising pertains to Perdue’s Harvestland Organic sub-brand and not the Perdue brand as a whole, the NAD recommended. However, the self-regulatory body noted that nothing in the decision prevents Perdue from touting qualities for its chickens that do apply to the brand generally (raised without antibiotics, for example).

As for the express claim that Perdue’s chickens are “happy,” the NAD shared the concerns of the challenger that the ads overstated the actual conditions in a way that could potentially mislead consumers. As the advertiser’s depiction of its chickens in the commercials was not sufficiently tailored to the Harvestland Organic sub-brand, “viewers may take away an impression that all of Perdue’s chickens are allowed access to sunlight and the outdoors as depicted in the commercial,” the NAD wrote, recommending a modification to clearly limit the claims to the Harvestland Organic line.

In its advertiser’s statement, Perdue indicated its plans to appeal to the National Advertising Review Board.

To read the NAD’s press release about the case, click here.

Why it matters: The NAD used the decision as an opportunity to remind advertisers about the factors considered when determining whether an advertisement communicates a line claim. As the self-regulatory body found that the advertiser made generous references to the general brand and the copy failed to effectively limit the applicability of the claim, it concluded that consumers may have been misled to understand that all of Perdue’s chickens are organic—not just those offered through the Harvestland Organic sub-brand.