Kraft Foods, Inc. (Gevalia Kaffe for Tassimo), NAD Case
#5542 (01/03/13)
Starbucks and Kraft, which makes single-cup coffee pods for
Tassimo brewers, ended an earlier agreement for Kraft to sell Starbucks
pods. Kraft then introduced Gevalia
brand pods with ad claims in the form: “NEW!” If you like STARBUCKS® [Breakfast
Blend/Caffe Verona/House Blend] try this!*”
The asterisk went to a small disclaimer of affiliation. Starbucks argued that this falsely implied that the varieties tasted the same or similar to the coordinate Starbucks blend.
Starbucks' case: it submitted an internet survey using an image of the
Dark House Blend. Respondents
were asked to look at it carefully “as if you are shopping in a store,” then asked what brand of coffee was
in the package; 74% identified Gevalia and went on to the remaining questions,
which continued with open-ended questions about the main idea of the
package. They were then asked whether
the package referred to any other brand and given six choices, including
Starbucks, as well as write-in and “unsure” options. Those who identified Starbucks (62% of the
original 253) were asked “Do you recall whether or not the package said: ‘If
you like Starbucks House Blend try this!’” Those who said no or didn’t remember were
filtered out, leaving 53%. These were
asked “which of these ideas, if any does that [statement] communicate to you?” The options were (1) the taste is similar;
(2) Gevalia is less expensive than Starbucks; (3) “Neither of the ideas is
being communicated. It is only suggesting that people try Gevalia Dark House
Blend”; and (4) don’t know/no opinion.
In response to this closed-ended question, almost all of the
remaining participants, or 48% total, took away a taste similarity message,
while only 4% received a cost message and 1% didn’t know or had no opinion. Also, the results on the open-ended questions
corroborated the closed-ended results: 83% of those who remembered the “if you
like” claim volunteered a taste similarity answer in response to the open-ended
questions. Starbucks further argued
that, because the ad said nothing about cost, the answer that Gevalia was less
expensive operated as an “internal control” for noise: asking a reasonable
question that isn’t answered in the ad can control for respondents’ mention of
ideas that don’t really appear in the ad based on preexisting beliefs. No alternate control ad was possible, because
that would require removing the comparative element.
Starbucks and Kraft fought over coding, but Starbucks
argued that responses about preference that didn’t specifically mention “taste”
or “flavor” should be coded as favoring Starbucks because consumers select
blends based on taste. In addition, even
only looking at specific references to taste flavor, 28% of respondents volunteered
that type of response to the open-ended questions.
Starbucks’ next hurdle: was the claim of taste similarity
false or unsubstantiated? NAD requires
advertisers to substantiate reasonable interpretations of their claims. To disprove the claim, Starbucks conducted
taste tests of the three pairs, with a total of 150 participants tasting each
pair in five major cities. Participants
were asked to prepare the coffee “as you normally do when drinking coffee,”
taking care to “prepare both coffees exactly the same way,” and shown their
answer choices so they’d know their objective.
(This is going to distort results of taste tests—verbal overshadowing
and all that.) They were asked to eat
some cracker and sip some water before each taste, and offered the opportunity
to taste the coffees a second time. Then
they were asked to choose from the options “The coffees taste very different
from each other,” “The coffees taste somewhat different from each other,” and “The
coffees taste similar to each other.” In
each case, from 64-74% of participants chose “very different” or “somewhat
different.”
Kraft argued that the “if you like Starbucks, try Gevalia”
claim communicated only that Gevalia was a new alternative worthy of being
tried. “Try this!” simply encouraged
action, rather than making a factual claim.
While Starbucks claimed that consumers would only try another coffee
because of similar taste, Kraft rejoined that consumers could just as easily
act out of curiosity or the desire for a different taste within the same
general range (e.g., dark roast). Indeed,
NAD and the courts have not found vague or ambiguous terms such as “like” or
“try” to be falsifiable.
Kraft also had a number of objections to the survey. As for the closed-ended questions, Kraft
argued that the survey steered respondents by underlining the words “is less
expensive to buy” and “is similar to,” cuing them to those two answers as the
ones that were more likely to be “right.”
And because the “less expensive” message was so implausible as a
takeaway from the ad, participants were actually steered to the “similar”
response. In an online survey, where
participants’ attention can’t be controlled, this was especially problematic. Here, moreover, the survey underlined “is
similar to” but not “taste,” and so rushed participants might easily overlook
“taste” and focus on general similarity, such as similarity in blend. (The initial survey description sounded good,
but the underlining does seem problematic to me for precisely these reasons.)
Kraft had other objections, including that the final option
(“Neither of the above ideas is being communicated. It is only suggesting that
people try Gevalia Dark House Blend”) was two separate and unrelated answer
choices combined into a single convoluted option, and didn’t fairly present
Kraft’s intended message—try Gevalia—as a choice. It also disputed the coding of some
responses, such as responses simply using the words “comparable,” “similar,”
“just as good,” etc., as taste similarity claims. Moreover, taste similarity could just mean
that they fit into the same general categories such as bold, dark roasts; the
survey wasn’t able to distinguish between “trivial” similarity and “tastes just
like” similarity.
Kraft also criticized the taste test, arguing that the
surveyor represented, either expressly or by implication, that the coffees were
different. Kraft argued that many
respondents see tests of this kind as tests of their ability to make
distinctions. (FWIW, this is my
understanding of the research as well.)
There is a standard control for this, which Starbucks didn’t use: give a
control group the exact same coffee twice and ask them the same questions.
NAD found in favor of Starbucks. An advertiser is responsible for supporting
all reasonable interpretations of its advertising claims, and NAD agreed that a
reasonable implication of “if you like X blend, try Y!” for coffee is that Y tastes the
same as or similar to X. The online
survey was generally reasonable, though NAD was troubled by the closed-ended
question and questioned whether the “less expensive” choice was a suitable
internal control. NAD also didn’t like the failure to fully rotate the options
(so that only the first two rotated), and agreed with Kraft’s criticism that
the third option, containing Kraft’s intended message, wasn’t well
phrased. Further, the underlining was problematic. So NAD didn’t rely on the answers to that
question.
However, NAD was more inclined toward Starbucks’ position on
the open-ended questions. By NAD’s
count, 66 out of 253 respondents, or 26%, referred to either the taste or
flavor of the two products being similar or the same. Combined with NAD’s
independent evaluation of the claim, this was enough to determine that the
language communicated more than a mere invitation to try Gevalia. It would be reasonable for a consumer to take
away a “similar taste” message given the hedonic appeal of “like.” However, NAD cautioned that a mere mention of
a competitor wouldn’t in and of itself convey a comparative taste message.
There was no record evidence about whether consumers
preferred one coffee over the other. NAD
noted Kraft’s criticisms of the taste tests, but Kraft itself provided no
evidence substantiating the claim.
Because the burden of substantiation is on the advertiser, NAD
recommended that the claim be modified or discontinued. Kraft, of course, respectfully disagreed with
NAD’s conclusion, but for “various business reasons” is changing the claim
anyway.
2 comments:
Good article. However, please identify NAD instead of forcing people to use the Wikipedia to figure out that it stands for the National Advertising Division of the B.B.B. (at least I think it does).
I completely agree with the previous comment. As a lawyer reading this post for substantive information, it was really annoying not having NAD defined.
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