New York, NY – March 18, 2014 – The National Advertising Division has recommended that The Hershey Company modify advertising for the company’s Brookside Chocolate-Covered Candies to assure that consumers understand the products are made with fruit flavors, rather than pieces of fruit. The advertising claims at issue, made on product packaging and in television advertising, were challenged by Mars Incorporated, a competing maker of chocolate products.

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.

Claims at issue included:

• “Brookside Dark Chocolate Acai with Blueberry”
• “Brookside Dark Chocolate Goji with Raspberry”
• “Brookside Dark Chocolate Pomegranate”
• “Smooth dark chocolate covered real fruit juice pieces.”
• “Natural Source of Flavanol Antioxidants”

NAD also considered whether the advertising at issue implied:

• Brookside chocolate-covered products are chocolate covered fruit.
• Brookside chocolate-covered products provide a meaningful nutritional benefit.

Initially, the products were sold in packages that included images of fresh fruit, a product name – “Dark Chocolate Goji with Raspberry,” for example – and the statement “Natural Source of Flavanol Antioxidants.”

At the outset, the advertiser requested that NAD administratively close its inquiry into packaging claims because the packaging had been revised to omit the mention of flavanols and add the word “flavor” to the end of each product name – “Dark Chocolate Goji with Raspberry Flavor.” The advertiser asserted in writing that it has permanently discontinued the original product packaging, action NAD found necessary and appropriate.

In considering the advertiser’s position, NAD noted that the original packaging was still available in retail outlets at the outset of Mars’ challenge and retained jurisdiction.

NAD acknowledged in its decision that, generally, consumers who are told that a product is “flavored” with a particular fruit do not take away the message that the product necessarily contains a piece of that fruit. NAD determined that the phrase “Soft fruit flavored centers covered in smooth dark chocolate” was an accurate description of the advertiser’s product –a fruit-flavored candy covered in chocolate. NAD also determined that the product names, “Brookside Dark Chocolate Acai and Blueberry Flavors,” “Brookside Dark Chocolate Goji and Raspberry Flavors,” and “Brookside Dark Chocolate Pomegranate and Fruit Flavors,” did not inherently convey a message that the product contained actual fruit. Absent extrinsic evidence that consumers have been confused or misled, NAD is reluctant to require an advertiser to change the name of a product.

However, NAD did find that the layout and font sizes used in revised packaging could be read in a way that conveyed additional messages. NAD determined that because the name of a single fruit was presented on its own line in much larger font than the word “flavors,” consumers could reasonably understand the product to have three distinct parts: dark chocolate, a real piece of the highlighted fruit (Acai, Goji, or Pomegranate), and, separately, other fruit flavors. NAD recommended that the advertiser further modify its packaging to present the product name in a manner that makes it clear that all of the identified fruits are in fact “flavors” and not actual pieces of fruit in the product.

The broadcast advertising at issue depicted a team of chefs, chopping chocolate and preparing berries and pomegranates in an outdoor kitchen. A voiceover described the products as “[r]ich dark chocolate meets sweet soft centers flavored with exotic fruit juices … .” The super read: “Flavored with a blend of juice concentrates and fruit flavors.”

NAD noted in its decision that the visual cues presented in the advertisement were particularly striking, and served to “draw viewers’ attention away from the voiceover’s important message that the products are only ‘flavored’ with fruit juices, and … convey an inaccurate message that the products contain actual fruit.”

NAD recommended that the advertiser discontinue its television commercial or modify it in a way that would avoid conveying the unsupported message that the products contain real fruit.

Hershey, in its advertiser’s statement, said that while the company “disagrees with NAD’s assessment of the layout of the product name, Hershey supports industry self-regulation and will take NAD’s recommendation into account.”

Hershey also disagreed with NAD’s conclusion with respect to the Brookside TV commercial. “In any event,” the company said, “the particular TV execution challenged by Mars ran its course in 2013. Hershey will take NAD’s concerns into account with respect to any new version of this execution.”