NAD Determines Broadcasting Advertising for Tyson’s Hillshire Farm Ultra Thin Oven Roasted Turkey Breast Doesn’t Materially Alter Product Appearance

New York, NY – July 11, 2018 – The National Advertising Division has determined that Tyson Foods, Inc., “did not materially alter or enhance” the appearance of the company’s Hillshire Farm Ultra Thin Oven Roasted Turkey Breast when it removed the inner plastic package from the product before filming.

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

Kraft Heinz Food Company, maker of Oscar Mayer cold cuts, contended that the removal of inner packaging reasonably conveyed the message that Tyson’s Oven Roasted Turkey Breast is packaged without a plastic bag inside the container.

Kraft Heinz stressed in its challenge that it had expended considerable time and resources to develop patented packaging for its own cold cuts that does not require use of a plastic bag inside the plastic container.  As a result, the challenger said, cold cuts sold under its sub-brands are packaged solely in a clear plastic tub, allowing the consumer to clearly see the product within.

Kraft Heinz argued that the ability to sell cold cuts in packaging that keeps the product fresh without an interior plastic bag allows for easier removal and the “fluffed and folded” arrangement of its cold cuts is preferred by consumers because it conveys a freshly-sliced deli appearance.

The challenger contended that by depicting its Oven Roasted Turkey Breast in packaging that does not include an interior plastic bag, the advertiser is attempting to reap the competitive benefits of offering bag-free packaging.

The advertiser argued that the challenged advertising makes no claim, express or implied, that the cold cuts are packaged without an interior pouch and shown for roughly three seconds of the total one minute of advertising across the three challenged advertisements.

NAD noted that, while there was no dispute that the product’s packaging had been altered and the interior pouch removed, an advertiser can utilize artistic liberty in its product depictions provided that they do not, directly or by implication, mislead consumers with regard to a material attribute of the performance of the product.

In the absence of reliable consumer perception evidence, NAD routinely steps into the shoes of the consumer to determine what implied messages, if any, are conveyed by an advertisement. “In the absence of reliable consumer perception evidence demonstrating otherwise, NAD found no basis to believe that the reasonable consumer would think that Tyson is claiming that their cold cuts are any fresher, easier to access, or otherwise more palatable than competing cold cuts or that the commercial conveys a materially misleading message about the packaging of the cold cuts,” NAD wrote.

Tyson, in its advertiser’s statement, said the company “is a strong supporter of voluntary advertising self-regulation and thanks NAD for its thorough review.”

Note: A recommendation by NAD to modify or discontinue a claim is not a finding of wrongdoing and an advertiser’s voluntary discontinuance or modification of claims should not be construed as an admission of impropriety. It is the policy of NAD not to endorse any company, product, or service. Decisions finding that advertising claims have been substantiated should not be construed as endorsements.