Del Monte took on Dole over a fruit cocktail cup ad set in a gym where one spandex clad woman pokes a hole in her fruit cup and says it is “in syrup so I like to drain it.” Her spinning buddy says “Well these Dole Fruit Bowls are 100% fruit juice so . . . I drink it!” A voiceover says “Dole Fruit Bowls, the only national brand packed in 100% juice” with a super clarifying Dole’s “regular” line is packed with juice.
The challenger said it is implied that the syrup is unfit for consumption while the Dole juice packed bowls are healthier. While NAD views comparative advertising very strictly, in this case, NAD concluded that the advertiser was promoting a unique truthful benefit about its product and was not falsely disparaging the competing product. While NAD often finds unintended implied claims can be supported by the visuals, the fact that the women were shown in a health club in work out gear did not convey the message that one fruit bowl was healthier than another. Probably critical to the finding was the fact that before the challenge started, Dole discontinued earlier versions of the same ad that referred to the competing product as having “sugary syrup” or “goo.” (While we have not conducted an exhaustive search, we would be hard pressed to find an example of a NAD case referring to a competing product as “goo” that was upheld.) Because the prior ads were discontinued before the challenge got going (and Dole committed not to repeat), under its own rules, NAD did not consider these ads or claims but only the less-gooey current version.
But NAD did not find peachy the line claim used. The ad used a generic product shot and referred to “these Dole fruit bowls”. The voiceover promises Dole is the only national brand packed in 100% juice, qualified with a disclaimer that this means the regular fruit bowls. At the very end of the ad, a package shot shows the subset of “standard” fruit bowls that have the juice. Dole does have other fruit cup lines packed in liquids other than juice. NAD felt the disclaimer and final shot did not sufficiently limit the claims to a subset of the Dole line and recommended Dole make this clearer. Likely a confounding factor was referring to the “regular” bowls in the ad when the website refers to “standard” bowls, and further no such words appear on the product packaging. But clarity was not the sole issue, as NAD found the disclosure not to be conspicuous but also contradictory to the broader headline claim.
So take a bite (or a slurp) out of this tip: narrowly focusing on your own product benefits is a fruitful way to avoid a finding of false disparagement. But do not lose the orchard for the trees by failing to appropriately and clearly define the specific basis of comparison, even when sweetly focused on the positive.