In a somewhat unusual case, NAD determined that Tyson Foods "did not materially alter or enhance" the appearance of its Hillshire Farm Ultra Thin Oven Roasted Turkey Breast by removing the inner plastic package from the product in commercials.  Kraft Heinz, maker of Oscar Mayer cold cuts, had challenged the commercials, arguing that the removal of the inner packaging conveyed the message that Tyson's Oven Roasted Turkey Breast is packaged without a plastic bag inside the container. And since Kraft Heinz had developed its own patented packaging for its cold cuts that obviates the need for an inner plastic bag, it really cared about the possible message conveyed by Tyson.

NAD found that there was no dispute as to whether the product’s packaging as depicted in the commercials had been altered and that the inner package had been removed.  The issue, then, was whether "this depiction communicate[d] a material claim." Neither party submitted a consumer perception study, so NAD used its own judgment to determine the takeaway, looking at the claim in the context of the commercials as a whole to determine what message, if any, was conveyed by the missing packaging.

Here, NAD found, "the clear focus of the advertising [was] the sandwich making process, emphasizing the palatability of the sandwich elements – the bread, the cheese, and the greens, culminating with the cold cuts,"  rather than the missing packaging. Moreover, "the images of the product packaging [were] shown very briefly – at most, they take up a single second of each individual advertisement – limiting their ability to convey any material message to consumers."  Accordingly, NAD determined that the advertiser did not "materially alter or enhance the appearance of the product in the commercial and that the challenged advertising was not misleading."

What are the takeaways here?  First, take care with beauty shots of your products. Does the lighting, styling or background in the commercial just make the product look appealing, or do your production values actually communicate a material claim about your product?  Have you made any changes in the product's appearance?   And, if so, do those changes communicate a claim? If any claims are communicated by how you show the product (particularly if it's a demonstration of its performance), those claims must be truthful and substantiated.  Artistic license is not a license to exaggerate the benefits or qualities of a product.