ADventures in Law

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It’s time for my favorite time of the year, when all the Valentine’s Day candy goes on sale! In honor of this sugary sweet clearance sale, I wanted to recap some of our favorite NAD chocolate cases. So whether you like milk chocolate, dark chocolate or chocolate with nuts, you can make the sweetest claims by taking a trip down this lovers’ lane of NAD cases.

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In 2013 the NAD brought a case against Hershey over claims the company made in advertising its Special Dark chocolate product. Instead of relying on the heart-shaped box, Hershey leaned into the health angle by touting the benefits of dark chocolate. Hershey claimed, “A single serving of Hershey’s Special Dark chocolate has a higher capacity of antioxidants than two cups of green tea.” The company also compared the Special Dark to a glass of red wine by stating, “Hershey’s Dark chocolate has as much flavanol antioxidants as a glass of red wine.”

To support these claims, Hershey sent samples of commonly consumed varieties of red wine (merlot, cabernet and Shiraz) and green tea to a laboratory for testing. The laboratory was able to verify that the average level of flavanol antioxidants in one serving of the company’s Special Dark chocolate was 114 mg, which far exceeds the average level of flavanol antioxidants in red wine (68.8 mg/serving). To support the green tea claims, the laboratory brewed the tea and then performed an oxygen radical absorbance capacity analysis. The results showed that the Special Dark chocolate contained on average 6,218 micromole TE/serving – more than three times the 1,736 micromole TE/serving of green tea. The NAD evaluated these studies and found that it did support the claims made by Hershey.

The NAD was also concerned that the net impressions of the advertisements conveyed an implied claim that Special Dark provides specific health benefits or reduces the risk of disease. It is a long-standing standard at the NAD that an advertiser is responsible for substantiating implied claims reasonably conveyed by their advertising. Hershey maintained that it was not making an implied claim that its product cured or reduced a disease, but it still provided some studies that showed dark chocolate has been shown to have positive effects on eicosanoids (anti-clotting) and blood pressure. The NAD reviewed these studies and the advertisements at issue, noting that the claims make reference to the amount of antioxidants but no reference to any disease condition or specific health benefit. As the advertisements did not make an express or implied connection between the antioxidants in Hershey’s Special Dark and a specific health condition, NAD determined that the claims did not convey the message that eating the Special Dark chocolate has been shown to provide specific health benefits. Chocolate lovers everywhere rejoiced!

Then in 2014 Hershey faced a challenge from fellow chocolatier Mars Inc. over its Brookside chocolate brand. Hershey advertised its products through a variety of claims such as “Brookside Dark Chocolate Acai with Blueberry,” “Smooth dark chocolate covered real fruit juice pieces” and “Natural Source of Flavanol Antioxidants.” Mars also took issue with the packaging, which featured images of fresh fruit with chocolate with statements such as “Smooth dark chocolate covered real fruit juice pieces.” Mars alleged that these claims were misleading and gave the impression that the advertised product was chocolate-covered fruit that provided a meaningful nutritional benefit.

Prior to the commencement of the challenge, Hershey had changed the packaging and claims featured, but it argued that it is acceptable to reference fruit as long as the advertisement explains that the product is fruit <strong>flavored</strong>. The NAD agreed and explained that the word “flavor” is an incredibly important identifier in food advertising as it tells consumers what the flavoring of a product is and does not convey the message that the product is literally fruit covered in chocolate. However, the NAD took issue with the layout and font size used to convey this messaging. The NAD explained that because the name of the single fruit was on its own line in much larger font than the word “flavors,” a reasonable consumer could presume that this product was made up of three different parts: dark chocolate, a real piece of the highlighted fruit (acai, goji or pomegranate) and, separately, other fruit flavors. NAD recommended that the packaging be updated to make clear that the identified fruits are actually just flavors and not real pieces of fruit.

So there you have it – a few bite-size tidbits on our favorite chocolate cases. When advertising your chocolate products, make sure you have the necessary substantiation to support all your claims. While dark chocolate can be a healthier choice, be careful to avoid making claims that it can cure or treat an actual disease. If your product includes fruit, make sure that you are clearly and conspicuously disclosing whether the product contains actual fruit or just fruit flavoring. So that’s the soft, chewy center of my favorite chocolate cases at the NAD.<a id="_msocom_1"></a>

Chocolate Cases Worth Melting For