When are ‘best’ claims puffery versus misleading? NAD weighs in on case brought against Old Trapper by Link Snacks

09-Jan-2024 - Last updated on 09-Jan-2024 at 15:48 GMT

Source: Old Trapper

Whether advertising something as “best” is protected as puffery or requires substantiation depends on the context and whether the claims are presented “monadically” or are comparative or quantifiable, according to an advertising watchdog that reviewed a case brought against meat snack maker Old Trapper Smoked Products by competitor Link Snacks.

The BBB National Programs’ National Advertising Division recently reviewed advertising claims made as part of Old Trapper’s “Clearly the Best Beef Jerky” campaign, which the snack maker says is a “fun play” on its clear product packaging, but which competitor Link Snacks said were false, misleading and unqualified superiority claims that Old Trapper’s beef jerky was objectively better than competitors’ products.

Old Trapper countered that the claims were merely puffery because they do not compare brands or specific products and the use of “best” was not tied to a measurable attribute.

The crux of the argument is not new, and played out in a Lanham Act case between Pizza Hut and Papa John’s, which disputed Papa John’s slogan “Better Ingredients. Better Pizza.” as well as an earlier NAD review of Almond Breeze’s tagline “the best almonds make the best almond milk.”

As in those cases, NAD determined when “best” claims are “presented monadically and do not convey a comparative message” or are unquantifiable then they constitute puffery or are examples of corporate pride for which a reasonable consumer would not expect substantiation or be misled.

But, added, “where monadic claims are presented with measurable or specific details those additional details can effectively change the monadic claims to comparative claims requiring substantiation.”

Where is the line between monadic and comparative claims?

In Old Trapper’s case, NAD drew the line between claims that appear in a monadic context that are not comparative or which do not mention specific competitors or ingredients and those that link a general claim to a specific product attribute.

For example, NAD determined Old Trapper’s slogan “Clearly the Best Beef Jerky” when used on product packaging and its website were puffery, as was its claim “The Best Ingredients Create the Best Beef Jerky” that appears on its website landing page. Likewise, claims in a 15-second YouTube video that “Old Trapper is Clearly the Best Beef Jerky. Clearly More. Clearly Nothing to Hide. Clearly Fresh. Clearly the Best.” is puffery, added NAD.

However, supporting claims that Old Trapper made to justify its “best” claims are not protected as puffery because they tip into the realm of objective claims that can be quantified or suggest comparison, NAD determined.

NAD pointed to Old Trapper’s claim on social media that “We use only the highest quality ingredients in every Old Trapper flavor. That’s just one of the reasons why Old Trapper is #ClearlyTheBest.”

NAD explained that because this claim was displayed alongside visuals of “animated ingredients” that “it ties the quality of the ingredients to the ‘Clearly the Best’ claim and conveys an objective message that requires support.”

As Old Trapper did not provide support that it uses the highest quality ingredients, NAD ultimately recommended it discontinue the claim “We use only the highest quality ingredients in every Old Trapper flavor: That’s just one of the reasons why Old Trapper is #ClearlyTheBest.” and modify the advertising in the YouTube video and on its YouTube channel to avoid conveying the message Old Trapper is using superior ingredients.

Does location matter?

While the ads and claims did not mention specific competitors, Link Snacks unsuccessfully argued the ads were comparative due to physical context because both brands’ products are often “intermingled” on retail store shelves.

This again was an argument that NAD had heard – and dismissed – before when it reviewed claims that because Kraft Heinz’s strategically placed point of sale materials claiming Heinz Real Mayonnaise near Unilever’s Hellmann’s products it created a comparative superiority claim.

In this case, as in that one, NAD determined that “even though the products appear side-by-side, the placement of products displaying the challenged claim ‘Clearly the Best,’ while in close proximity to Link Snacks and other competing products at the POS did not, without more, convey to reasonable consumers any superiority message about Old Trapper.”