Mars v. Hersheys: Real Fruit or Fruit Flavoring?

ChocolateIn a recent decision by the National Advertising Division of the Better Business Bureau candy manufacturer Hershey’s was instructed to improve its advertising to make clear that its Brookside Dark Chocolate line is not made with pieces of fruit, but rather   fruit flavors.

Hershey’s competitor Mars, Inc. challenged its Brookside ads, arguing that the layout and font sizes on the candy’s packaging misled consumers into believing they were eating real fruit, rather than fruit flavored juice wrapped in chocolate.  For example, the package described the product as “Brookside Dark Chocolate Goji with Raspberry Flavors” but the word “Goji” appeared much larger than the “Raspberry Flavors.” Mars argued that this was calculated to mislead consumers into believing that the product actually contained real Goji fruit, with added raspberry flavoring.  Mars also pointed out that the package featured pictures of fresh fruit, and that a television commercial took place at a farm locale, which further promoted the misleading message.

Hershey responded by arguing that consumers were not misled because the product name itself included the description fruit “flavors” and text on the bottom of the package stated, “soft fruity flavored centers covered in smooth dark chocolate.” The commercial similarly used the term “flavored” and the country setting for the ad was selected to reinforce the “Brookside” name and logo, which includes a tree and stream.

To make its decision, the NAD examined the product and its advertising from a consumer’s perspective and found that while the product name did not inherently convey a message that it contained real fruit, the layout and font sizes conveyed a contrary message.

“Consumers could reasonably understand the product to have three distinct parts: dark chocolate, a real piece of the highlighted fruit (Acai, Goji, or Pomegranate), and, separately, other fruit flavors,” the NAD wrote. “A consumer could reasonably attach the word ‘flavors’ to the fruit directly next to it (blueberry, raspberry, or fruit), while not reading the word ‘flavors’ to apply to the fruit in substantially larger text on a separate line.”

The NAD also said that the “overwhelming imagery of fresh fruit and chefs gathering and preparing fresh fruit” left consumers with a reasonable belief that the product contained actual fruit. Even with an oral qualified claim, the NAD found that “the visual cues presented in the advertisement are particularly striking, and serve to draw viewers’ attention away from the voiceover’s important message that the products are only ‘flavored’ with fruit juices, and rather convey an inaccurate message that the products contain actual fruit.”

The NAD recommended that Hershey’s modify Brookside packaging “to present the product name in a manner that makes it clear that all of the identified fruits are in fact ‘flavors’ and not actual pieces of fruit in the product.”

This case further demonstrates that companies must always consider the various ways that their advertising may be interpreted, to ensure that it does not convey a false message.  Even subtle touches, such as the font size, emphasis, and word order are subject to challenge if they may tend to leave a false impression in the mind of the consumer.

Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
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