Truth in advertising under microscope

Kellogg Co. agrees to settlement, casting a light on advertisers' claims


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In 2008, Kellogg Co. launched a series of ads boasting that one of its breakfast cereal, Frosted Mini-Wheats, could boost kids' memory and attentiveness in school.

In a commercial, a voiceover told viewers, "A clinical study showed kids who had a filling breakfast of Frosted Mini-Wheats cereal improved their attentiveness by nearly 20 percent."

To most viewers of these ads, Kellogg's claim came off as harmless -- just another attempt to reframe the discussion, focusing on the potential benefits of eating an otherwise sugary breakfast cereal. But the claim got under the skin of two sets of parents, from California and Ohio, who banded together to file a class-action lawsuit, alleging that the company had used deceptive advertising to push its product.

Kellogg denied wrongdoing, and still does. But in late May, the company agreed to pay $4 million to settle the lawsuit. Under the terms of the deal, customers who bought Frosted Mini-Wheats between Jan. 28, 2008, and Oct. 1, 2009, are eligible for up to $15 each in compensation.

The settlement shines a light on the fine line separating fact from fiction in the world of advertising.

"There's always a natural tension between the marketing department, whose job it is to promote a product, and the legal department, who tend to be more conservative and cautious," said David Gurwin, a shareholder at Pittsburgh-based law firm Buchanan Ingersoll & Rooney and the chair of its entertainment and media law group.

The general rule is that unprovable "puffery" is allowed -- the world's juiciest hamburger or the world's tastiest milkshake. There is no way those claims can be statistically proved.

But if an advertiser seeks to quantify a claim, using numbers or studies, it should be prepared to back up the claims. And even then, the campaign can sometimes go awry.

The problem with the Kellogg campaign, laid out in a Federal Trade Commission complaint filed in 2009, was that the findings of the study in question -- which happened to be funded by Kellogg -- did not support the claim being made in the ads. The study found that, on average, children felt 11 percent more attentive in school after eating a breakfast of Frosted Mini-Wheats. But that attentiveness boost was compared with a control group who ate no breakfast at all.

Moreover, only 1 in 9 kids improved by 20 percent or more.

Tim Blood, a managing partner at the law firm Blood Hurst & O'Reardon LLP, which represented the plaintiffs, said it was crucial to bring such a suit so that other companies would know that they, too, could face retribution if they misrepresented the benefits of their products.

"The reality is, people buy products based on advertisements because they believe the advertisements are true," Mr. Blood said.

In a written statement, Kellogg spokeswoman Kris Charles said, "We long ago adjusted our communication to incorporate FTC's guidance."

Subsequent Frosted Mini-Wheats ads sported new, watered-down language: "Clinical studies have shown that kids who eat a filling breakfast like Frosted Mini-Wheats have an 11 percent better attentiveness in school than kids who skip breakfast."

In a statement on a website set up to handle claims, the company said, "Kellogg stands by its advertising and denies it did anything wrong."

The Frosted Mini-Wheats settlement must still be approved by a judge.

Mr. Gurwin, of Buchanan Ingersoll, said the FTC has its hands full separating the half-truths from the outright mistruths. "A statement can be literally true but still be deceptive," he said.

For example, many companies feature advertisements that claim 9 out of 10 experts would recommend a particular product. Now, imagine that the company only talked to 10 experts, and nine had relatives who worked for the company.

That sort of misrepresentation in advertising is the most common, Mr. Gurwin said, as companies feel that the risk is outweighed by the financial gain. Still, if a claim cannot be substantiated -- meaning that the evidence does not suggest it will remain true across cases -- it is subject to FTC scrutiny.

In recent years, the FTC has cracked down on a number of misleading ad campaigns featuring products that promised to improve the buyers' health.

In 2010, the agency leveled a complaint against Pom Wonderful Inc. for advertisements claiming that its pomegranate-flavored drink could help prevent heart disease, prostate cancer and erectile dysfunction.

In 2011, Nivea skin care manufacturer Beiersdorf agreed to stop advertising a lotion that the marketing claimed would help buyers trim down just by rubbing it on their thighs.

And in 2012, Sketchers agreed to pay $40 million to consumers who had bought sneakers with rounded heels, which the company had claimed would tone the wearer's leg and buttock muscles just by walking in them.

In fact, the number of deceptive health claims seems to have gone up in the past five years, according to Mary Engle, FTC associate director for advertising practices. For example, a 2011 FTC survey found more American consumers were victims of "fraudulent" weight-loss products than any other type of fraud, with more than 5 million purchasing and using such products in 2011 alone.

No one, including Ms. Engle, is completely sure why this is the case. But experts think several factors might be at play.

Some suggest the economic downturn has led more consumers to turn to health-boosting and weight-loss products as they attempt to manage their own health care and avoid expensive doctor visits and medications.

"Desperate times call for desperate measures," Mr. Gurwin said.

But the increasing popularity of these products can also be attributed to the Internet and social media. It's much easier for manufacturers of weight-loss products to sell their merchandise online.

And many companies have begun hiring virtual spokesmen -- famous Facebook and Twitter personalities -- to tout their products online, without disclosing that the pitchmen are being paid.

But the Internet might also be providing consumers a new platform to complain when the products they buy don't have the intended effect.

"We're seeing more complaints from consumers because the Internet affords people to speak their mind," said Bob Gilbert, an associate professor of marketing at the University of Pittsburgh. And as long as companies continue to make deceptive claims, he said, consumers will continue to point them out.

legalnews

Michelle Hackman: mhackman@post-gazette.com or at 412-263-1969.


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