Considering sensory testing to support a head-to-head “consumers prefer” comparative claim? NAD recently issued an opinion suggesting a best practice is to compare your product to the most similar competitive offering. They found in a case involving taste testing of lasagna that disclosures of the specific products being tested were not sufficient. If there is a closer “apples to apples” product, this must be the product tested or if not, the disclosures must be very clear.
In this case Stouffer’s brought a challenge against Marie Callender over comparative claims for lasagna on product packaging and Internet advertising that its product is “preferred over the leading Meat Lasagna”. Marie Callender compared its 31 ounce Three Meat and Four Cheese Lasagna to Stouffer’s 21 ounce Meat and Sauce Lasagna, the latter being the best selling lasagna. Nestle explained that the smaller product is designed for singles on the go who prioritize faster cooking time. (Side note: I seem to recall being able to savour food slowly before having children not after!). Nestle made a larger multi-serve product intended to be oven heated made with more premium ingredients and urged that this was the right comparative product to use in taste testing. Marie Callender’s said it wanted to perform its taste test using its product compared to the market leading frozen lasagna. It asserted it was clear in what was being compared.
NAD said it was acceptable to make apples to oranges claims as long as the comparative product is clearly disclosed and that there is no implied false messages that the comparative product is the most similar product or that the advertiser’s product is preferred to the entire line of the competitive product. Here NAD felt that even with disclosures that the “preferred over the leading lasagna” claim was compared to Stouffer’s 21 ounce that this was not sufficient. NAD said “it often behooves an advertiser to choose the most similar variety made by the competitor”. While it left open the possibility that this is not required, it is not clear what disclosures would be acceptable to NAD to support an apples-to-oranges comparison.
There was also a preemption portion of the decision. NAD rejected Marie Callender’s argument that NAD should not review the product label because it had already been reviewed by USDA. NAD explained that although it “seeks to harmonize its decisions with applicable federal regulations and rulings, the approval of a label by [the Food Safety and Inspection Service] is not an indication that FSIS necessarily analyzed or issued any findings on the particular issue complained of here – whether the preference claim communicated a misleading comparative message to consumers.”