Eatin’, Drinkin’, Watchin’ TV &
The First Rule of Advertising

By Jon Lee Andersen

Time for a look at current advertising and the quest for steadfastly following the First Rule of Advertising, “Always Tell the Truth,” meaning the truth, the whole truth and nothing but the truth. As I suspected, the struggle goes on. And this time the illustrations all come from the big boys of the consumer products and services sector. Here’s the review.

First let’s eat. Here the antagonists are the Federal Government, specifically the Federal Drug Administration, and General Mills. General Mills has been has been extolling the benefits of Cheerios in its labeling on the cereal boxes with claims such as “ you can lower your Cholesterol 4% in 6 weeks,” “Cheerios can reduce bad cholesterol by an average of 4%,” and “clinically proven to lower cholesterol.” This makes Cheerios a DRUG! in the opinion of the FDA. The FDA’s analysis goes something like this: the claims indicate that Cheerios is intended for use in lowering cholesterol and therefore in preventing, mitigating, and treating the disease hypercholesterolemia. Because of these intended uses, the product is a drug under the definition of drugs found in the US Code. And because it is a drug, it cannot be marketed without an approved new drug application.

Here is a cereal that has been on grocery store shelves since 1941, and while I am sure the recipe has probably changed somewhat, the essential ingredients have not. And now it is a drug (actually, some mothers might agree because of its calming effect on babies). In any event, General Mills is sticking to their guns and their research, although there will be some changes in the claims. Of course, hidden in the claims is the all important phrase, “when eaten as part of a diet low in saturated fat and cholesterol. In fact the latest box I could find (in my pantry, I still love them) is now pretty specific in the finer print: i.e. each day eat two 11/2 cup servings daily and cut 500 calories from your diet. I have not been privy to the discussions between General Mills and the FDA, but my guess is that with these wording changes, FDA will pass on taking any further action on this matter. And as for General Mills telling the “nothing but the truth in its packaging,” that is probably a bit questionable.

Now we drink. This brouhaha is between the Coca-Cola Company and PepsiCo, or more specifically, between the divisions of these organizations that make and sell Gatorade and PowerAde. Gatorade is the clear industry leader in the sports drink category, with over 75% of the market. I’m sure this statistic was (and is) driving the folks at PowerAde nuts, so their scientists came up with a new formula with two additional electrolytes, (calcium and magnesium) found in sweat. Called PowerAde ION4, the new drink was advertised as “the most complete sports drink” touting its two new ingredients. Gatorade took great umbrage at the implication that it was not also a complete sports drink and sued PowerAde to stop the advertising. In the most recent development in the case, a federal judge sided with PowerAde over the efforts of Gatorade to stop the advertising spots with “the most complete sports drink” claim, by denying Gatorade an injunction against the running of the commercials. Whether it influenced his decision is unknown, but PowerAde had actually already stopped running the commercials before the judge issued his ruling. To me, the truth issue here is that troublesome word “most.” Did the addition of the two ingredients really make the drink the “most complete?” I doubt it, and thus I believe PowerAde crossed the First Rule threshold in their claims. I suppose PowerAde could fall back and claim that the ad claims are just puffery, because there is no real standard for the term most complete, but personally I would not buy that position.

Finally, we get to the TV. Here we pit DirecTV against Charter Communications. Shortly after Charter filed for Chapter 11 bankruptcy, DirecTV began an aggressive advertising campaign aimed at Charter customers and prospective customers. In its advertising, DirecTV noted that Charter had filed for bankruptcy and then claimed that “there’s no way they’ll be able to bring you the latest technology, more channels in HD and new exclusive programming.” Charter sued, claiming the ads were false and misleading. The judge agreed with Charter and ordered DirecTV to stop running the ads. The judge did agree that DirecTV could point out the fact that Charter was in bankruptcy, which was true, but the remaining parts of the advertising was just speculation and had no substantiation whatsoever. Once again, an ignoring of the First Rule.

Always remember, remember, remember and then remember again, you MUST be able to substantiate advertising claims. In the Cheerios matter, I think General Mills feels that they have acceptable scientific evidence to support their claims, so long as the other dietary requirements are stated, which is where they fell victim to the First Rule breach. I don’t know about the substantiation for PowerAde. I think it is the only sports drink with the two new ingredients, but the questions really are: what effect do these two ingredients make to the performance of the product; and do they really make it the most complete of all the sports drinks? As to DirecTV, they truly ignored the rule, and just winged it with what they thought the majority of consumers would believe about a company in bankruptcy, whether true or not.

Think of things this way:

Lawsuits, lawsuits, oh how we love ‘em
My colleagues can never get enough of ‘em
But I think you’d concur
That there’d be a lot fewer
If the truth was the root of ad stratagem

© August 2009 Jon Lee Andersen All Rights Reserved