A Call to ‘Upgrade’ Can Be Puffery, NAD Says

Advertising Law

In a mixed decision addressing puffery, the National Advertising Division (NAD) found that a claim made by Kraft Heinz on point-of-sale (POS) displays for its Heinz Real Mayonnaise constitutes puffery, but may also be an unsupported comparative claim when viewed in a different context.

Unilever, the maker of Hellmann’s mayonnaise, challenged Kraft’s claim urging consumers to “Upgrade Your Mayonnaise,” arguing that it was a broad, disparaging and unsupported line claim that Heinz is superior to all of Hellmann’s mayonnaise products.

Hellmann’s (and its affiliated brand) accounts for 65 percent of the mayonnaise market, with the remaining 35 percent comprising highly segmented and largely private-label brands. As an established market leader, Hellmann’s is the “clear target” of the ad claim, which conveys the message that Heinz Real Mayonnaise is an “upgrade” in product quality, the challenger told the NAD.

As support, Hellmann’s provided the self-regulatory body with photographs of the Heinz POS materials that were placed in the middle of store shelves where Hellmann’s mayonnaise was displayed, and another version of the signage where a large arrow was pointed at Hellmann’s products and not the advertiser’s mayonnaise.

Kraft Heinz countered that the claim was a general and subjective statement, and therefore puffery. The term “upgrade” only suggests a general improvement that is vague, subjective and non-measurable, the advertiser told the NAD.

In response to Unilever’s photographs and assertion that the POS materials were deliberately placed in close proximity to Hellmann’s products, Kraft stated that in 98 percent of the stores where the materials were used, the POS signage was placed in front of Heinz products. Only in the remaining 2 percent were materials placed elsewhere due to space limitations.

The advertiser represented that if it used the “Upgrade Your Mayonnaise” POS signage in the future, it would instruct its vendors to place the materials only immediately in front of or pointing to Kraft Heinz products. In reliance on that representation, the NAD did not review the merits of the claim in the context of POS materials placed immediately in front of or pointing to competitors’ products.

In the context of POS signage in front of Kraft Heinz products, however, the self-regulatory body found that the claim “Upgrade Your Mayonnaise” does not reasonably convey any message that Heinz Real Mayonnaise is superior to any other mayonnaise.

“Consumers do not typically understand mayonnaises as literally having a ‘grade’ and therefore ‘Upgrade Your Mayonnaise,’ is vague and general,” the NAD wrote. “‘Upgrade’ is also not connected to any message about Heinz Real Mayonnaise’s ingredients, taste, or consumers’ preferences. Consumers are unlikely to take away a message that Heinz Real Mayonnaise is superior to competing mayonnaises in any measurable aspect from ‘Upgrade Your Mayonnaise’ standing by itself. Instead, consumers are likely to take away the message that Kraft Heinz is expressing pride in its product.”

However, the NAD cautioned the advertiser that the word “upgrade” is not puffery when it conveys a message that the “upgrade” represents an objective improvement in the product’s quality or performance in either a stand-alone or a comparative sense.

“[T]he determination that ‘Upgrade Your Mayonnaise’ on POS signage is puffery is limited to its use in attracting consumers’ attention to Kraft Heinz products as they walk by Kraft Heinz products and does not extend to any placement of the signage where it may reasonably be construed as making an unsupported claim about the relative quality of other mayonnaise products,” the NAD wrote.

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

Why it matters: The self-regulatory body’s decision offers an important reminder to advertisers that whether or not a claim constitutes puffery may depend on the context. The NAD found that Kraft Heinz’s claim was puffery when applied to its own products, but cautioned that a different result could be reached if the claim were directed at another product.



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