James Bond MartiniJames Bond preferred his martinis “shaken, not stirred” but what about Greek yogurt with fruit at the bottom?  Well, according to the NAD, stirred or not stirred are both equally acceptable (no word on “shaken”).  That was only one of several questions NAD resolved in a challenge by Chobani to a Yoplait Greek Yogurt taste test commercial.

Chobani, Inc. (“Chobani”) challenged several of General Mills, Inc.’s (“General Mills”) advertising claims that “nearly 2 out of 3 people agree—Yoplait Greek Blueberry tastes better than the leading Chobani” and “tastes better than the leading Chobani.”  To substantiate these claims, General Mills used a national taste test comparing Yoplait blended blueberry “Greek” Yogurt to Chobani’s blueberry fruit on the bottom yogurt. 

Chobani objected to aspects of the test, including the fact that participants were not told to “stir” the Chobani yogurt as well as the fact that although the taste test was limited to one flavor Yoplait implied in social media and elsewhere that the results were for the brand as a whole.  Further, Chobani contended that General Mills solicited bloggers to post positive reviews of its products but the bloggers failed to clearly and conspicuously disclose the free products and coupons received in exchange for the posts.

Late last week, NAD held that General Mills had adequate support for certain advertising claims that consumers preferred blueberry-flavored Yoplait “Greek” Yogurt over Chobani in national taste tests, but recommended termination or modification of claims that suggested brand superiority, rather than simply a single flavor superiority.  NAD reaffirmed its long-standing view that a single flavor taste comparison (even if the products are slightly different – blended versus fruit at the bottom) was acceptable to support a preference claim as long as the products being compared were clearly disclosed.  NAD also rejected Chobani’s argument that participants should have been told to stir their yogurt first by citing, among other things, Chobani’s own instructions to consumers that they could enjoy the yogurt either way.

General Mills did not fare quite so well when it came to whether a brand, rather than a flavor preference, was being communicated.  NAD did agree with General Mills that the television commercial did not communicate a broad consumer preference for all Yoplait flavors over all Chobani flavors because of the use of voiceovers and depictions of only the blueberry flavor.  However, NAD took issue with other media in which the claim appeared.  Online and in shelf talkers General Mills boasted that its yogurt was preferred to the “leading Chobani.”  Although General Mills argued it was referring to blueberry as the “leading flavor” (a fact which Chobani disputed and which is certainly not true in any of our households), NAD recommended that the claim be discontinued because it could be interpreted to refer to Chobani as the “leading brand.”

NAD also had issues with Yoplait’s use of the challenge results in social media.  Even though General Mills’ actual advertisements on Twitter and Tumblr disclosed the blueberry product comparison, General Mill’s solicited user-generated posts which appeared in close proximity to the challenge claims and referenced taste comparisons to other flavors and the product line as a whole, which could result in consumers taking away a broader message.  The NAD recommended that in future advertising General Mills more clearly separate the claims about Yoplait’s taste test results from comments solicited from consumers.

Finally, NAD recommended that when an advertiser offers incentives for product reviews, it should advise reviewers of their disclosure obligations and discontinue re-posting reviews on social media that lack disclosures of material connections.  NAD cited the requirement in the FTC’s Guide Concerning the Use of Endorsements and Testimonials that “where there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement . . . such connection must be disclosed.”   NAD rejected the argument that a $4 coupon was such a small incentive as to render the connection immaterial.  Thus, it seems clear that even a small amount of incentive compensation can be deemed material for disclosure purposes in NAD cases.

In this day and age when advertisers promulgate claims over many different media, this decision should serve as a reminder that each unique medium has to be looked at carefully to make sure that the meaning of the claim is not altered in some fashion from what was originally intended.  Further, any company offering any type of incentive to bloggers should think closely about whether to disclose that fact regardless of its value given NAD’s findings with regard to a $4 coupon.