CerealA recent National Advertising Division (“NAD”) decision serves as a reminder that comparative taste preference claims can quickly sour without methodologically sound substantiation. Taste-testers (and advertisers) should take heed.

In Mom Brands Co., breakfast cereal maker Post brought an NAD challenge against two categories of claims Malt-O-Meal Brand Cereals Co. (“MOM”) made comparing Post cereals to MOM’s cereals. MOM touted its superior taste – e.g. “National Taste Test WINNER Fruity Dyno-Bites preferred over Post Fruity Pebbles” – and larger packaging – “Cocoa Dyno-Bites – 50% More Compared to Cocoa Pebbles cereal 15 oz. box” – on packaging and in television, Internet and point-of-purchase advertisements.

Post attacked MOM’s taste preference claims as lacking substantiation because the test underlying these claims suffered from numerous methodological flaws. Among other problems, Post asserted that MOM’s study did not: (i) accurately reflect the demographics of people who eat sweetened breakfast cereals, (ii) test two markets in each geographical region of the United States, (iii) use products that were of comparable and typical age, and (iv) include “no preference” in the body of each question. Additionally, Post complained that the test’s questionnaire was unclear as to whether participants self-administered the test and that it omitted a proper palate cleansing procedure. As for the comparative size claims, Post argued that these claims, though literally true, misleadingly implied that Post does not offer a package size of cereal larger than 15 ounces.

MOM fired back arguing that its test largely followed the non-binding guidance of the American Society for Testing and Materials’ Guide for Sensory Claim Substantiation, and applied common sense. For example, MOM’s study targeted the universe of purchasers of the product, rather than children who, Post contended, ate most of the cereal. MOM also attempted to downplay its imperfect geographical balance by explaining that it sold less cereal in the northeastern United States thereby justifying its decision to test just one market in that region.

As for the ages of the products tested, MOM stated that all the cereals tested were within the freshness dates noted on the packaging. MOM also explained that “no preference” was an option in all of the responses to the questions asked of survey participants, negating the need for it in the body of each question. Similarly, MOM argued that the questionnaire was so simple that it was proper for subjects to self-administer it. Lastly, MOM argued that it had been making the 50% more claim for over a decade, and its 22.5 ounce cereal packages competed with Post’s 15 ounce cereal boxes rather than Post’s recently-introduced 40 ounce bags of cereal.

The NAD rendered a split decision, with each side shaking out a prize. The NAD found that methodological flaws undermined MOM’s taste preference survey, rendering it “insufficiently reliable to serve as a reasonable basis for [MOM’s] taste preference claims.” In particular, the NAD faulted MOM for conducting a taste test among the purchasers instead of the primary consumers of the competing cereals, and for failing to test more than one market in the northeastern United States. The NAD recommended that MOM Brands discontinue this taste preference advertising.

As for the comparative size claims, the NAD ruled that MOM’s claims were not misleading because MOM disclosed the basis of its comparison clearly and in direct proximity to the main claim. It also helped that MOM marketed a 40 ounce package that competed with Post’s 40 ounce bag of cereal.

This decision is food for thought for any advertisers considering comparative taste preference claims.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.