Civility may not be trending in public discourse, but it still has a place in advertising law. While comparative advertising is of course fair game, NAD has long drawn the line at "ash canning," or ads that depict competing products as "worthless."
In its recent review of advertising by Promotion In Motion, Inc. (PIM Brands), NAD found that its commercials for Welch's Fruit Snacks crossed the line into outright ash canning. These commercials featured celebrity chef Gordon Ramsay in the role of a "Chief Fruit Officer" with a sharp tongue. In various ads, Ramsay touts Welch's snacks as being made from whole fruits while deriding the competition.
But Ramsay didn't stop with cool-headed ingredient comparisons. In a commercial set in a grocery store, for example, Ramsay glares disapprovingly at "Fruit Flavored Snacks" and notes "there's barely any fruit in there." He then drop-kicks the box into a nearby lobster tank. In a commercial set in someone's home, Ramsay grabs "Fruit Flavored Snacks" out of the pantry, smells the open box and then tosses it through a kitchen window, breaking glass in the process.
While NAD "did not make any finding as to quality of Welch's Fruit Snacks versus competing fruit snacks" in this SWIFT track case, NAD found these visuals to be problematic on their face. In NAD's words: "Spitting, throwing, and kicking a product for the lack of fruit or fruit flavoring conveys a message that those distinctions make the competing product worthless and are not merely statements on the relative merits of the products and their ingredients. An inedible food product by definition has no value and the net impression of the commercials is that parents should not purchase a product that is garbage for their children." Here, and in a long line of other cases, NAD views ash canning as off limits. Rather than engaging in its usual dispassionate review of the "fit" between an advertiser's claims and its claim support, NAD considers depictions like this to be an automatic no-go.
For brands engaging in comparative advertising, this decision is a reminder to keep any drop-kicking in the metaphorical realm. Even comical depictions of hurling, throwing or discarding competing products—whether named or unnamed—can land an advertiser in hot water.
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