NAD Finds Talking Rain Can Support Certain Claims, Recommends Company Discontinue Certain Claims for ‘Sparkling Ice’ Products Following Nestle Challenge

New York, NY – July 17, 2014 – The National Advertising Division has determined that Talking Rain Beverage Company did not mislead consumers by referring to its “Sparkling ICE” drinks as “naturally flavored sparking mountain spring water.” However, NAD recommended that, particularly where the consumer cannot examine the product, the company discontinue claims that might imply it contains nothing but water.

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

Nestle challenged the claim “Naturally flavored sparkling mountain spring water” made by Talking Rain in television, website, print advertising and packaging were challenged by Nestle Waters North America.

NAD also examined whether the advertising at issue implied that Sparkling ICE is the virtual equivalent to water or healthier than other carbonated beverages.

Nestle argued that Sparkling ICE is mislabeled as “a naturally flavored sparkling mountain spring water” in violation of the Food and Drug Administration’s bottled water regulations. According to the challenger, the beverage does not meet the FDA’s standards of identity for either “spring water” or “sparkling water.” Furthermore, it argued that the product fails to bear an appropriate common or usual name as required by FDA regulations.

While NAD seeks to harmonize its decisions with the relevant regulatory guidance, NAD’s fundamental task is to assess the truth and accuracy of advertising claims as they are reasonably understood by consumers. NAD considered how the advertiser’s “spring water” claim would be reasonably understood in the context of the packaging on which it appears.

NAD determined that the Sparkling ICE label as a whole makes clear to consumers that the liquid inside the bottle is more than just water.

NAD noted in its decision that the products are packaged in a bottle with a transparent label through which consumers can clearly see the bright color liquids. The product name, “Sparkling ICE,” appears prominently at the top, center of the label. The product label calls out the presence of flavoring and additional non-water ingredients in at least five distinct ways:

•  The color of the liquid itself 
•  The depiction of a piece of fruit (indicating the flavor of the beverage) inside of an ice cube, The flavor name of the beverage – “Black Raspberry,” “Orange Mango,” etc. – which appears directly beneath the product name
•  The statement “Naturally flavored sparkling mountain spring water,” which indicates the presence of flavoring
•  The ingredient list on the label

Following its review of the evidence in the record, NAD concluded that Talking Rain’s description of its Sparkling ICE product as “Naturally Flavored Sparkling Mountain Spring Water” was not likely to mislead consumers. NAD also concluded that the product name and advertiser’s addition of vitamins and antioxidants to Sparkling ICE are not misleading. NAD further determined that the Sparkling ICE label did not give rise to an implied claim that the product is “virtually equivalent” to water or that it is “more healthful” than water.”

However, NAD was troubled by the claims, “THE ADVENTUROUS SIDE OF WATER,” “THE VIBRANT SIDE OF WATER,” “THE BOLD SIDE OF WATER,” etc., which appear on the product website and social media, as well as on billboards and other outdoor advertisements. Unlike a consumer holding a bottle of Sparkling ICE in his or her hand, NAD determined that a consumer viewing such advertising claims could reasonably take away the message that the product is indeed water. NAD recommended the advertiser discontinue those claims.

Talking Rain, in its advertiser’s statement, said that although it “disagrees with NAD’s recommendation that it discontinue the taglines,” the company “will take that recommendation into consideration as it develops future advertising.”