United States: Retro-Grade: Old-School Chewing Gum Ad Raises Modern Claim Substantiation Issues

Last Updated: May 16 2018
Article by Neil Austin

Welcome to another installment of Retro-Grade, where we take a trip down memory lane, looking at classic ads from days of yore 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 Saturday Evening Post in 1937.

The Biggest Little Show on Earth!

In the late 1930s, Beech-Nut Gum ran a series of ads using circus imagery to sell its gum and candy products.  The ad above is an example from that series (also pictured here).

In it, a clown and strong man have a laugh and share a pack of Beech-Nut Gum after the show, each radiating joy as he takes a stick of gum from the pack.  The performers are so eager to kick back with some gum that they haven't even bothered to take off their costumes.  We are witnessing what the ad tells us is "The Happy Moment—when the show is over."

In addition to the Norman Rockwell style illustration, there is a tie-in to an actual circus—the "Beech Nut Circus"—described as "mechanical marvel" featuring "3 rings of performers, clowns, animals, music, 'n' everything ... now touring the country."  In fact, Beech-Nut did operate twelve buses that toured the country displaying a miniature mechanical circus, dubbed the "Biggest Little Show on Earth."

Apart from the circus imagery, the ad depicts the lineup of Beech-Nut Gum and makes specific claims about two products in that lineup, namely that: (1) Beech-Nut Peppermint is "the most popular gum in America," and (2) ORALGENE is a "new firmer texture gum that aids mouth health and helps fight mouth acidity."

"Most Popular Gum in America"

Beech-Nut's claim that its peppermint gum is the "most popular" would almost certainly receive a close look by competitors.  "Most popular" is a fairly vague claim, by itself, and could potentially be deemed puffery.  To the extent consumers interpret it to have a more specific meaning (like "best selling" or "best tasting"), however, the advertiser might be required to have substantiation for those interpretations.

The National Advertising Division ("NAD") has previously analyzed a claim that a particular brand was "America's best-loved coffee" and determined, based on the elements of the particular ad, that the claim was puffery—too vague and not sufficiently measurable to require substantiation.  See Kraft Foods, Inc. (Maxwell House Coffee), Report #3201, NAD Case Reports (June 1995).  The challenger argued that the reasonable interpretation of "best loved" was "leading," and pointed to data showing that its competing coffee product had greater market share.  NAD found that the challenger failed to meet its burden of proof, however, because descriptions like "most popular" were themselves vague and did not necessarily equate to "leading."

Similarly, the Eighth Circuit has held that the phrase "America's Favorite Pasta" is puffery.  American Italian Pasta Company v. New World Pasta Company, 371 F.3d 387 (8th Cir. 2004).  As part of its analysis, the Eight Circuit relied on a definition of "favorite" that included the word "popular" and found that the meaning of popular did not bring "America's Favorite Pasta" within the ambit of a specific, measurable claim.

Another issue likely to be considered is whether the geographic scope of the claim is adequately supported.  Assuming that the claim is not deemed puffery, it would require substantiation, and since the claim is expressly national in scope, a competitor might challenge whether the substantiation is representative of the entire nation. If a product is popular only in the Northeast but has sufficient sales there to lead all other brands nationally, calling it the most popular product "in America" might pose some risk.

"Aids mouth health and helps fight mouth acidity"

Next, the ad claims that ORALGENE is a "new firmer texture gum that aids mouth health and helps fight mouth acidity."  This claim, too, might well garner some attention, including from regulators.

The FTC makes no secret of the fact that it focuses closely on claims touting health benefits.  While these claims are not as likely to receive attention as, say, weight-loss or cognition claims, they might still get a look.

The bigger threat here may be plaintiff-side class action lawyers.  If there is evidence inconsistent with the claim, a consumer class action could be in the offing, with an effort to certify a nationwide class of consumers who allegedly paid more for the product believing the health claims to be true.  Of course, class actions often tend to follow public disclosures by the FTC or NAD, so if those entities can be avoided, the class action risk is reduced.

Since the claims at issue are arguably health claims, the FTC would take the position that the advertiser must have "competent and reliable scientific evidence" to support them.  That means the FTC would expect to see "tests, analyses, research, studies, or other evidence based upon the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results."  That standard is higher than the "reasonable basis" test that might otherwise apply.

Accordingly, the advertiser would ideally have some strong studies or product tests before making these claims.

The "aids mouth health" ad would require similar substantiation, and (as with the "most popular" claim) the advertiser might be required to substantiate both express and implied claims.  As with the "most popular" claim discussed above, consumers' interpretation of "mouth health" may not be identical to what the advertiser intends, in which case a challenge could pose risk.

Retro-Grade

So does this ad make the grade?  Of course it does.  For starters, it's a fascinating vintage example of tying a particular product to popular culture.  In the days before most households had a television—not to mention Netflix, YouTube, Twitter, and video games—the traveling circus was a huge deal.  Here, the advertiser doesn't simply use circus performers in the ad, it creates a campaign that includes twelve miniature mechanical circuses touring the country.

But beyond the aesthetic appeal, the ad is a great reminder that performance and preference claims are a tried-and-true method of marketing a product, but that any such claims must be substantiated.

Grade: 5 out of 5 juggling circus clowns.

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