New York, NY – Jan. 15, 2009 – The National Advertising Division of the Council of Better Business Bureaus has determined that ConAgra Foods provided adequate substantiation for certain advertising claims made for “Hunt’s Tomato Sauce,’ but recommended the advertiser discontinue the claim that its sauce is “packed full of 100% natural vine-ripened tomatoes … .”

NAD, the advertising industry’s self-regulatory forum, examined claims for the product following a challenge by Stanislaus Food Products, Inc., the maker of al Dente Premium Tomato Sauce.

Claims at issue in the NAD inquiry ingredient and freshness claims made in Internet advertisements and on product labels.

Express claims at issue included:

• “Our signature recipe is always…Packed full of Hunt’s 100% natural vine-ripened tomatoes…”
• “Hunt’s Tomato Sauce is made from all-natural, vine-ripened tomatoes, with salt, spices and natural flavors for seasoning……Slow-cooked for a rich, smooth texture….”

Implied claim at issue:

Hunt’s tomato sauce is made directly from fresh tomatoes (has not been thermally processed.)

The challenger contends that the product packaging claim “packed full of Hunt’s 100% natural vine-ripened tomatoes…” and web site advertising claim “made from all-natural, vine-ripened tomatoes”, both containing multiple depictions of fresh, whole tomatoes, convey the false message that the tomato sauce is made from fresh tomatoes or made from fresh ingredients when that is not the case. 

In contrast, the advertiser argued that its use of the term “vine-ripened tomatoes” is not to be equated with the term “fresh” and does not suggest or imply that its tomato sauce is processed or preserved and rejected the challenger’s contention that reasonable consumers will take away a “fresh” message from its Website and product packaging.

There is a substantial body of law and legal precedent regarding use of the term “fresh” in food labeling and advertising that is specific to tomato products and NAD noted that it is important for national advertisers and the advertising industry to receive a uniform message about the standards by which their food advertising and labeling claims will be reviewed.

To that end, NAD seeks to harmonize its self-regulatory efforts, in the arena of food advertising and labeling, with the framework already developed by the Food and Drug Administration and the Federal Trade Commission.

In this case, the parties disagreed as to how FDA regulation and NAD precedent should be applied to the claims at issue.

With respect to the product packaging, the foreground of the front panel of the advertiser’s product label contains a large image of a bowl of tomato sauce and a spoon (also containing tomato sauce).  In the background are images of whole tomatoes.  The side/back label states the “Hunt’s Promise [that] [o]ur signature recipe is always: [p]acked full of Hunt’s 100% all-natural vine-ripened tomatoes…”

On various pages of the advertiser’s Website (each devoted to a different variety of tomato sauce), the advertiser depicts its can of tomato sauce alongside copy reading: “Hunt’s Tomato Sauce is made from all-natural, vine-ripened tomatoes, with salt, spices and natural flavors for seasoning…Slow-cooked for a rich, smooth texture….”

Following its review of the advertising at issue, NAD determined that advertiser’s claim that its tomato sauce is “made from all-natural, vine-ripened tomatoes, with salt, spices and natural flavors for seasoning …” accurately communicated the nature of the product and did not imply that the product purchased by consumers was fresh.  The advertiser specifically states that its product is “slow-cooked” and NAD determined that consumers are unlikely to take away the message that the advertiser’s product is made directly from fresh tomatoes (or not thermally processed).

However, with respect to the advertiser’s product label, NAD arrived at a different conclusion. 

The challenged product label (front and back) contains images of vine-ripened whole tomatoes.  The label further states that the advertiser’s “signature recipe is always: packed full of Hunts 100% natural vine-ripened tomatoes…” 

It is undisputed that the advertiser’s tomato sauce is made from “tomato puree (water, tomato paste)…” among other ingredients.  NAD determined that, in the context presented  (i.e., “packed full” “100% natural”, etc.), consumers could take away the message that the advertiser’s tomato sauce is processed directly from fresh vine-ripened tomatoes, rather than a tomato puree (or concentrate) and water.

Accordingly, NAD recommended that the advertiser discontinue its use of the phrase, “packed full…of 100%” vine-ripened tomatoes. NAD recognized that the advertiser’s decision to use only vine-ripened tomatoes as an ingredient that is picked at the peak of the commercial buying season offers a significant benefit to consumers and nothing in this decision precludes the advertiser from more accurately communicating that its tomato sauce is “made from” or “prepared from” a puree that is derived from or begins with vine-ripened tomatoes, or more simply, that its tomato puree ingredient is prepared/made from vine-ripened tomatoes.

In its advertiser’s statement, ConAgra Foods said that while it respectfully disagrees with the NAD’s finding regarding the “packed full of Hunt’s 100% all‐natural vine ripened tomatoes,” it will follow NAD’s recommendation and discontinue the claim.