United States: Retro-Grade: Vintage Taste Test Claim Offers Lessons For Today's Advertisers

Last Updated: March 26 2018
Article by Neil Austin

Welcome to Retro-Grade, another new series from Foley Hoag's Advertising and Marketing Law blog. Here we take a trip down memory lane, looking at classic American ads from days gone by and examining issues that might arise if those ads were run today. As the name of the series implies, we give each ad a grade. We are not at liberty to disclose the details of our proprietary grading scheme, but suffice it to say it is neither rigorous nor scientific.

This week we're focusing on an ad that appeared in the March 31, 1947 edition of Life Magazine, featuring a 43-year old Joan Crawford extoling the gastronomic virtues of Royal Crown Cola.

The Famous Taste Test

In a style typical of celebrity endorsements from this time period, the endorsement is presented as a direct quote and doesn't skimp on exclamation points:

"RC tastes best!" says JOAN CRAWFORD / Star of HUMORESQUE, a Warner Bros. Picture. I took the famous taste test and picked Royal Crown Cola best-tasting of them all! Try it! Say "RC for me!" It's the quick way to get a quick-up with Royal Crown Cola – best by taste test!

The ad does not identify any other colas by name, but it does include an image of Crawford with three paper cups, labeled "X," "Y," and "Z," suggesting a blind taste test among RC and two other brands.

Other RC ads from the time period shed additional light on the "famous taste test." As seen in this ad, which ran four years before the Crawford ad, RC's taste preference claim was based on a taste test involving RC and two other "leading" colas, (presumably Coca-Cola and Pepsi).

RC ran a series of these ads in the 1940s featuring celebrities like Crawford, Bing Crosby, and Shirley Temple, and by depicting celebrities in the midst of taking the test, RC was encouraging consumers to try the test themselves. Perhaps consumers would take the test and reach the same result as Betty Hutton, who "tried leading colas in paper cups, then pointed to one ... Royal Crown Cola!"

Legal Considerations

What's particularly interesting about the Crawford ad is that it was published within a year after enactment of the Lanham Act. If a competitor had reason to question the taste preference claim made in the ad, it could have brought suit against RC under the Lanham Act. But we see no evidence of any such dispute.

That seems fairly remarkable today. Taste test claims are a hotbed for competitor disputes, and from these disputes a number of fairly specific rules-of-the-road have emerged. For example, the National Advertising Division has repeatedly held that the best evidence to support taste preference claims consists of double-blind testing and involves a geographically dispersed sample that reflects the target market. A self-administered paper cup taste test would not be ideal substantiation, but a well-controlled taste test that drew subjects from a number of geographic areas throughout the country would present a strong defense if a competitor were to launch a challenge.

But there are still potential pitfalls for advertisers who do not employ adequate protocols and methodology. For example, NAD has held that an ideal taste test would:

  • Compare products with similar shelf life that were purchased in the test market;
  • Prepare both products according to instructions;
  • Present and test products in the same way;
  • Require test subjects to cleanse their palate prior to tasting each product; and
  • Produce statistically significant results.

See, e.g., Domino's Pizza Inc. (Oven Baked Sandwiches), Report #5023, NAD Case Reports (May 2009).

In addition—and this might pose a challenge if the Crawford ad were released today—NAD has held that an advertisement featuring a consumer taste preference claim must identify the products that are the objects of the comparison. Id.

Finally, this probably goes without saying, but endorsements must reflect the honest opinions, beliefs, or experiences of the endorser. If Joan Crawford truly did not prefer RC cola, she might find herself in violation of the FTC's Endorsement Guides.

And as it turns out, Crawford did undergo a change in allegiance. Eight years after appearing in this ad, she married the President of Pepsi, Alfred Steele, and went on to serve on Pepsi's Board of Directors—proving that all is fair in love and the cola wars.

Today, this style of endorsement is... well ... a little old-fashioned. A celebrity might appear in a print ad enjoying a cold, frosty beverage, but you probably won't see any first-person narrative accompanying the image. That doesn't mean celebrity endorsements are any less common. In fact, with the prevalence of social media, they are likely more common today than ever—so much so that the FTC has devoted significant energy to regulating how such endorsements are presented. If Joan Crawford had access to Twitter, and posted a selfie with the three paper cups and some flattering words about RC, she would want to check out the FTC's Endorsement Guides and make sure to disclose any material connection between her and RC.

Retro-Grade

So does this ad make the grade? As a vintage slice of Americana, it's a beautiful piece of print advertising that not only makes bold taste preference claims but also encourages consumers across the country to gather up some paper cups and conduct their very own blind taste tests. For that reason alone, it's a winner. Beyond that, Crawford's transition from RC endorser to Pepsi board member is an exceptional twist that only increases the ad's allure.

Whether the ad would make the grade as a legal matter turns in large part on what lies below the surface—e.g., whether Crawford really preferred RC, and whether the taste test was sufficiently rigorous and methodologically sound. While we will never know those secrets, we can safely say that if this claim were brought today, competitors would almost certainly be contemplating a challenge.

Grade: 3 out of 3 papers cups of leading cola.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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