Regular readers of this blog know that some of my colleagues and I will find whatever excuse we can to include dogs in our posts.  So a recent Decision from NAD was a gift: an excellent excuse for me to cover my favorite topics: ad law and our canine friends.  And I get to include a photograph of my delightful labradoodle, Finley, who would eat nothing but freeze-dried minnows if given her druthers. 

This case was initiated by The Farmer’s Dog against Sundays for Dogs. Both companies sell dog food. Several claims were at issue in the action, including claims about cooking methods and flavor and certain ingredients, but I’m going to just focus on the ones that particularly interested me and are relevant to advertisers of all kinds.  (If you’re deep into the pet nutrition world, I recommend your reading the full Decision.  Case Report #7523.)

First, among the challenger’s concerns was the use of fruit and vegetable imagery by the advertiser on its website, including images of whole foods turning into dried fruits and vegetables, along with the claim “the same ingredients you’d put in your salad, now in your dog’s bowl.”  The challenger argued that this is misleading because the dog food contains extracts and nutrients, not the whole fruit or vegetable. NAD agreed, finding that there’s a difference between a product containing a whole fruit or vegetable and one with nutrients extracted from that fruit or vegetable and incorporated into the food and that the advertiser’s claims, textual and visual, conveyed the former rather than the latter.  Thus, NAD recommended modifications.

The challenger also took issue with the advertiser’s statement that its product is “the world’s healthiest, and most convenient dog food” which the challenger asserted constituted an unsubstantiated superiority claim.  The advertiser defended the statement as puffery.  NAD determined that in the context in which the statement appeared, it was a claim not puffery.  While NAD noted that “use of superlatives which are vague and fanciful and that do not suggest an objective measure of superiority can be puffery,” the statement here cited two specific and objective bases for being the best: convenience and healthfulness.  And, here, the claims were “surrounded by an explanation that Sundays spent three years and tested 17 formulations, taking into account multiple sources of data,” thus communicating a claim “reasonable consumers – and NAD – would expect …to be substantiated.” Because the advertiser did not provide head-to-head testing showing superiority over 85% of the relevant market, NAD recommend the claim’s discontinuance.

In addition, Farmer’s Dog challenged the advertiser’s price claims, i.e., that the Sunday’s  product is less costly and more affordable than Farmer’s Dog products.  NAD noted that comparative savings claims must be narrowly drawn to avoid overstating the comparative benefits and that the advertiser must be very clear about what exactly is being compared.  Here, the advertiser claimed that its products are “up to 55% less pricey” than frozen fresh foods. First, although Farmer’s Dog is not named specifically, NAD determined that consumers would naturally assume it the claim to be applicable to the challenger, given the small number of frozen food dog makers. Based on the evidence presented by the advertiser, NAD determined that it could substantiate its “up to 55% less pricey” than average frozen dog food because an appreciable number of customers would be able to achieve up to 55% savings.  However, since the advertiser could not substantiate that its food was up to 55% cheaper than Farmer’s Dog specifically, and that “depending on the size of the dog and the type of food, the Advertiser’s evidence shows that Farmer’s is more affordable than Sundays in some instances,” NAD recommended the claim’s discontinuance. 

NAD also addressed the advertiser’s “Made in US” claim.  At issue here was the fact that the advertiser’s products include beef bone and fish oil sourced from New Zealand.  The advertiser argued that it was still appropriate to characterize the product as made in the US because the two ingredients constitute only a small percentage of the finished products’ manufacturing costs and composition. However, NAD determined that, though contained in small quantities, the two ingredients are vital in providing the necessary nutrients for dogs in accordance with AAFCO standards. And, “if an ingredient is essential to the finished product’s function, then an unqualified Made in USA claim would be inappropriate regardless of how de minimis that ingredient is relative to the entire product.” Thus, NAD recommended that the advertiser modify its Made in US claim.

And a final note.  There’s a footnote in the Decision that caught my eye: “One of the papers [submitted by the advertiser], purported to have been published in the Journal of Food and Drug Safety Research, appears to be of dubious origin and possibly AI-generated. The paper will be given no weight.”  I too have had occasion to question the provenance of some evidence that has worked its way into a case, which I determined to be nothing but AI slop.  Not okay!