United States: A Hefty False Advertising Case: When The Competition Calls You Wimpy

Last Updated: April 6 2017
Article by Nicole Kinsley

If you're interested in garbage, the crass objectification of male celebrities, or both – or if you consider the two roughly equivalent – have I got a false advertising case for you!  Despite their "Don't Get Mad; Get Glad" tagline, the makers of Glad trash bags got pretty mad at a recent advertising campaign launched by their competitor, Hefty. So mad, in fact, that they filed a complaint with the National Advertising Division (NAD) of the Better Business Bureau.

NAD is a self-regulatory body run by the Better Business Bureau. It hears false advertising disputes, and recommends that problematic advertising be discontinued. Companies cannot be compelled to follow NAD's recommendations, but not doing so can result in a referral by the NAD to Federal Trade Commission, something most advertisers prefer to avoid.

The Implied Performance Claim

The Hefty ads at issue revived Hefty's chanted slogan – well known in the 1980s – "Hefty! Hefty! Hefty!" which is traditionally contrasted with "Wimpy! Wimpy! Wimpy!"  The Hefty chant is now embodied in noted muscular person, professional wrestler John Cena (presumably The Rock was busy).  The Wimpy chant, on the other hand, is paired with not-particularly-imposing comedian Rob Schneider.

In one spot, Cena purchases Hefty bags while Schneider opts for "Wimpy" brand bags.  Schneider assumes the resulting chants reflect only the juxtaposition of their physiques.  Proving him wrong, an elderly lady in a scooter selects Hefty bags, and is rewarded with the "Hefty! Hefty! Hefty!" chant.  Without provocation, she then drives her scooter straight into Schneider, because wounding both the pride and the foot of a less-traditionally-masculine man apparently passes for humor these days.

In the second ad, two couples are shopping in the trash bag aisle.  When an average Joe selects Hefty brand bags, he is transformed into John Cena, much to the delight of his wife.  The other man selects Wimpy bags, and becomes (or remains?) Rob Schneider.  His wife is less pleased.

Of course, Wimpy brand trash bags do not exist.  But NAD agreed that consumers would view Glad bags as the target of these ads, for a number of reasons.  First, Glad is Hefty's primary competitor, and the store aisle depicted shows only two major competing brands.  The fictional Wimpy packaging also shares a number of elements with Glad's, including its yellow color.  Last, but certainly not least, both ads ended with the claim: "Now costs less than Glad."  Hefty argued that this cost comparison claim would be viewed as entirely separate from the rest of the ad, so a consumer wouldn't connect Glad to Wimpy, but NAD considered this argument garbage.  Because Hefty did not offer evidence supporting the claim that its bags were stronger and more effective than Glad's, NAD recommended that it discontinue the Wimpy claim.

Notably, the visual elements of the ads were key to this decision.  A Hefty radio ad featuring the chants did not bother NAD, even though it also concluded on the price comparison with Glad.

The Express Cost Comparison Claim

Glad also challenged the express claim that Hefty "costs less than Glad."  Hefty took the position that the claim was limited to the premium-level kitchen trash bags that were visually featured in the commercial. But Glad argued – and NAD agreed – that the ads' focus on the overarching brands, Glad and Hefty, made the "costs less" statement a "line claim" that applied to the full array of products offered under both brands.  Hefty would therefore have to be able to support its claim across both full lines.  This was a problem, as Glad's large outdoor trash bags were often sold at lower price points than Hefty's.

There was also a dispute regarding which price data should be included for comparison purposes.  Hefty argued that the relevant prices were those offered in stores that sold both brands.  Glad argued, on the other hand, that this skewed the data because Glad bags – but not Hefty bags – were commonly sold in wholesale club stores at significantly discounted prices.  NAD agreed that the relevant prices were those available to consumers wherever they might shop for trash bags.  Since this included wholesale clubs, Hefty's claim was unsupported.

Hefty Won't Go Out with a Whimper

Hefty disagreed with but accepted NAD's decision regarding the "wimpy" claim, and discontinued the Cena/Schneider ads.  But Hefty announced that it plans to appeal the decision regarding the cost comparison claim to the National Advertising Review Board.  Since the decision, Hefty has launched new ads that remove the comparative performance claim.  Now, John Cena just makes his pecs dance while women swoon.  The "costs less than Glad" claim remains.

There are two primary takeaways from this NAD decision.  First, humor (or alleged humor) is rarely sufficient to save unsupported competitive claims challenged before the NAD.  Second, price comparison claims should take into account all prices regularly available to consumers.

Given their win, it seems that the makers of Glad "Got Mad, THEN Got Glad."  We'll have to wait and see whether the appeal will change that.

The case is The Clorox Company v. Reynolds Consumer Products, LLC, Case #6049 (January 26, 2017). NAD case reports are available on the organization's website on a subscription basis.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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