NAD Finds Fault with Taste Test’s Survey Universe and Test Locations

In a recent decision involving taste tests and preference claims for sweetened breakfast cereals, the National Advertising Division (NAD) once again reminds advertisers that advertising claims must be substantiated by properly designed and conducted consumer testing. The MOM Brands Company case (NAD Case No. 5782, Nov. 5, 2104) resulted from a challenge by Post Food, LLC, (Post) to preference claims used by MOM Brands Company (MOM) for four of its Malt-O-Meal brand cereals.

The challenged taste preference claims included:

• "MOM Oat Blenders with Honey & Almonds Preferred Over Post Honey Bunches of Oats with Almonds!"
• "National Taste Test WINNER Fruity Dyno-Bites preferred Over Post Fruity Pebbles."
• "National Taste Test WINNER Cocoa Dyno-Bites preferred Over Post Cocoa Pebbles."
• "MOM Honey Buzzers Preferred Over Post Honeycomb."
• "Malt-O-Meal Dyno-Bites Cereal Preferred Over Post Pebbles Cereal."

Post asserted that the preference claims were not properly substantiated by taste tests that met NAD's standards or guidelines set forth in ASTM's Standard Guide for Sensory Claim Substantiation, E1958 (ASTM Guide). NAD agreed, finding two major flaws with the taste tests MOM Brands commissioned: the constitution of the surveyed population and number of test centers within each geographic region.

The MOM's taste tests involved the target market for purchasers of the products - men and women between 30 and 64 - rather than individuals who actually consumed the cereals and therefore excluded a high percentage of actual consumers of the product. NAD found that the MOM's "National Taste Test Winner" claims conveyed the message that a representative sample of sweetened breakfast cereal users preferred its products over Post's, but by limiting the taste test to breakfast cereal purchasers, the advertiser excluded more than half of the actual product users in the product category, including consumers younger than 30 and older than 64. As a result, NAD determined that the taste tests were insufficiently reliable to serve as a reasonable basis for MOM's taste preference claims and recommended that the advertiser discontinue the claims.

Post also argued that the test violated the ASTM Guide's recommendation concerning the geographical diversity for test sites since the test included only one test market in the Northeast region. The ASTM Guide recommends a minimum of two markets in each of four major census regions. While the advertiser countered that it conducted testing in 10 distinct geographic locations and that its use of only one testing center in the Northeast was reasonable due to its lower market share in that area, NAD found the use of only one Northeast testing center was "a significant deviation from the industry standard." In addition, while MOM may have less market penetration in the Northeast, its advertising claimed that its products won a "national taste test," sending "a broad, strong message regarding the taste preferences of the overall population of sweetened breakfast cereal consumers. "NAD also noted that although MOM's products may have less of a presence in the Northeast, this may not necessarily be true for Post's products. Nor does it mean that the region does not have a significant population of consumers of sweetened breakfast cereal.

NAD disagreed with Post's contention that MOM's commercial for Fruity and Cocoa Dyno-Bites, which included the statement "[i]n a national taste test, Malt-O-Meal Dyno-Bites are preferred over Post Pebbles Cereal" conveyed an unsupported taste preference claim for the entire product line. NAD determined that the images accompanying the claim - two of MOM's cereals (Fruity and Cocoa Dyno-Bites) and two of Post's cereals (Fruity and Cocoa Pebbles) adequately limited the advertising message to those cereals pictured and, in that context, conveyed no line claim.

Finally, NAD concluded that MOM provided a reasonable basis for its product volume comparison claims, which included claims that MOM's Cocoa and Fruity Dyno-Bites packages contained "50% More - Compared to Fruity [or Cocoa] Pebbles cereal 15-oz. box." The advertiser's 22.5-oz. cereal bags, which are 50 percent larger than Post's 15-oz. cereal boxes, are the most relevant package sizes for comparison purposes. NAD rejected Post's argument that its 40-oz. bags compete with the MOM 22.5-oz. cereal bag as unsupported by the record.

While it agreed with parts of NAD's decision, MOM Brands plans to appeal to the NARB on the issue regarding the age groups sampled as well as the required number of taste test locations.

The MOM case is important for advertisers looking to conduct testing in support of taste or other sensory claims. It illustrates the weight that NAD gives to the ASTM standards in claim substantiation. It also serves as a cautionary tale: advertisers that deviate from the standards may have an uphill fight in demonstrating a reasonable basis for their claims. The NARB is expected to hear the appeal this spring.

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This report is a publication of Loeb & Loeb LLP and is intended to provide information on recent legal developments. This report does not create or continue an attorney client relationship nor should it be construed as legal advice or an opinion on specific situations.