Often, a marketing strategy can lead to unwanted consequences, including litigation. For example, one company decorated its fruit juice snacks with images of fruits, which led consumers to believe the fruit snacks contained actual fruit.1 In another case, a cracker manufacturer stated its product was “Made With Real Vegetables” and placed images of vegetables on the carton, even though it contained none of those depicted vegetables.2 These are just a handful of examples that have led to expensive and time-consuming litigation.
Now, Dr. Pepper Snapple Group, Inc., the maker of Canada Dry Ginger Ale, faces multiple lawsuits because of a marketing campaign that claimed that Canada Dry Ginger Ale was “Made from Real Ginger.” One television commercial pictured a ginger farm and showed a worker harvesting ginger, but “[w]hen he pulls up one of the plants by its stalk, he finds a bottle of Canada Dry Ginger Ale where the ginger root would normally be.”3 The same ad then stated that Canada Dry was “the root of relaxation.”4 According to various lawsuits, many consumers believed that Canada Dry contained real ginger root,5 but, after a detailed laboratory analysis these consumers learned that Canada Dry contained no discernable amounts of ginger.6 Instead, Canada Dry Ginger Ale contained a ginger derivative called ginger oleoresin.7 Because Canada Dry aggressively marketed its product as made with real ginger, it now faces uncertain legal liability.
Food and beverage manufacturers can learn important lessons from Canada Dry’s marketing campaign, including to avoid specific non-factual claims on which consumers could rely, and to confirm that a product’s label conforms to the Nutritional Labeling Education Act (“NLEA”).
Minimizing Actionable Puffery In Food and Beverage Advertisements
Puffery is generally defined as exaggerating an opinion in connection with the sale of a good or service.8 Opinions are generally not actionable, but in some cases unsubstantiated marketing claims can lead to legal consequences. In one case, Quaker Oats stated that certain granola bar products were “wholesome.”9 Several consumers, however, determined that the granola bars contained high levels of transfats, which are not naturally occurring, and can lead to illnesses such as heart disease and cancer.10 Eventually, these consumers brought suit against Quaker Oats. As a defense, Quaker Oats contended that the term “wholesome” was puffery.11 Evaluating these arguments, the Court stated that “[p]uffery involves outrageous generalized statements, not making specific claims, that are so exaggerated as to preclude reliance by consumers.”12 In the case of Quaker Oats’ granola bars, the Court found that it could not dismiss the consumers’ claims because the term wholesome “could mislead a reasonable consumer.”13 Under the Court’s analysis, puffery becomes actionable when it crosses a line between opinion and specific non-factual statements which consumers could believe to be true and which they may rely.14
Similar to Quaker Oats, the makers of Canada Dry Ginger Ale have argued that its ads were puffery, and therefore immune from suit. But one Court determined that it was unable to conclude that certain statements made in the Canada Dry Ginger Ale commercial were merely puffery.15 In particular, the Court was troubled with television advertisements that stated,“[f]or refreshingly real ginger taste, grab a Canada Dry Ginger Ale. Real ginger, real taste. Real Ahh,” while the words “real ginger” simultaneously appeared on the screen.16 Based on these statements, the Court concluded that a reasonable consumer could believe that Canada Dry Ginger Ale contained real ginger root.17
Food and beverage manufacturers should recognize the line between generalized opinion and specific non-factual claims and take steps to minimize the amount of actionable puffery. These...
