- Natural claims must be reviewed in context and be truthful, accurate and not misleading

Case #5125 (12/14/09) HEARTLAND SWEETENERS, LLC. Ideal® Challenger: - Merisant Company “Natural” claims must be reviewed in context and be truthf...
Author: Daniella Woods
12 downloads 0 Views 85KB Size
Case #5125

(12/14/09)

HEARTLAND SWEETENERS, LLC. Ideal® Challenger:

-

Merisant Company

“Natural” claims must be reviewed in context and be truthful, accurate and not misleading.

Basis of Inquiry: Labeling, print and Internet advertising claims made by Heartland Sweeteners, LLC for its Ideal sweetener on product packaging, website, print and other promotional materials were challenged by Merisant Company, maker of Equal brand and other no-calorie sweetener products. The following are representative of the claims that formed the basis of this inquiry: “Natural! NO CALORIE SWEETENER!” “Everyone loves Ideal, the new natural sweetener, that tastes like sugar, bakes like sugar, without the calories.” “More than 99% Natural” “Ideal is the perfect alternative to sugar and sugar substitutes because it … is made with Xylitol, a natural sweetener found in fruits and vegetables.” “What’s so special about Xylitol? … All-natural, looks and tastes just like sugar … Our bodies produce Xylitol as part of everyday metabolism.” “Ideal replacement in your sugar bowl … Sweeten the natural way!” “What makes Ideal different than the other no calorie sweeteners on the market currently? … More than 99% natural.” Challengers Position: The challenger explained that there are three main types of artificial sweeteners: (1) saccharin (Sweet’ N Low), which is 200 times sweeter than sugar; (2) aspartame (Equal), which is 200 times sweeter than sugar; and (3) and sucralose (Splenda), which is 600 times sweeter than sugar. These sweeteners deliver a product that is sweeter than a comparable amount of sugar by serving with fewer calories. According to the challenger, it has long been the industry’s goal to meet consumer demand for a no-calorie, natural sweetener with the taste of sugar but the hurdle has always been that few, if any, natural sweeteners can deliver the sweet taste of sugar without the calories. Additionally, most of these natural sweeteners are derived from carbohydrates (such as erythritol) which are generally less sweet than sugar such that more of this ingredient is needed to produce the same level of sweetness as sugar. Recently, however, the latest development in this arena has been a purified form of rebaudioside A, a natural sweetener derived from the stevia plant that is approximately 200 times sweeter than

HEARTLAND SWEETENERS, LLC. Ideal® Page: 2

sugar. Based on these developments, the challenger launched its PureVia, all-natural, zerocalorie tabletop sweetener – a highly pure form of the stevia plant extract. Other companies have also launched competing brands also sweetened with this natural extract. It is against this landscape, that the advertiser introduced its new Ideal sweetener into the marketplace, along with its marketing campaign. According to the challenger, the advertised Ideal sweetener does not derive its sweet taste “naturally,” as claimed, but, rather, derives nearly 80% of its sweetness from the artificial sweetener sucralose.1 Thus, the challenger asserted, like other artificial sweeteners on the market, which rely on a single high-potency sweetener combined with bulking agents – the advertiser’s product cannot be marketed as “natural” (or “99% natural”), thereby capitalizing on consumers’ fears about artificial sweeteners but actually delivering an artificially sweetened sugar substitute product. Indeed, the challenger pointed out, the advertiser’s own marketing materials and packaging refute the express and implied claims that the Ideal product is entirely natural with claims of “99% Natural”. The challenger further took issue with the claim “99% Natural” and “More than 99% Natural” (often placed inside a green leaf sprouting from the top of the logo along with other environmentally friendly imagery). The challenger also contended that numerous claims projecting a natural aura around the product convey the message that its minority-sweetening agent, xylitol is actually the sole cause of the sweet taste. These claims include: (1) “Ideal is the perfect alternative to sugar and sugar substitutes because it … is made with Xylitol, a natural sweetener found in fruits and vegetables”; (2) “What’s so special about Xylitol? … All-natural, looks and tastes just like sugar … Our bodies produce Xylitol as part of everyday metabolism”; and (3) “Ideal replacement in your sugar bowl … Sweeten the natural way!” In contrast to these claims emphasizing the importance of xylitol, the challenger pointed out that the advertiser does not disclose on its front or back panel that Ideal relies in any way on the artificial sweetener sucralose, much less that this ingredient is responsible for the majority of the product’s sweetness. Rather, the challenger asserted, the advertiser buries this critical fact in the ingredients statement on the side of the nutritional panel of the product package (as the last ingredient, “sucralose added for sweetness”), thereby attempting to downplay the importance of the sucralose in its product. Similarly, the advertiser’s website focuses on the “natural” ingredient xylitol, to the exclusion of sucralose on all but one sublevel page of its site. The challenger further maintained that the advertiser misleads consumers on its web site by telling them that Ideal is different from other no-calorie sweeteners because it is more natural 1

Indeed, the challenger pointed out, the advertiser does not contest the fact that sucralose is in fact an artificial ingredient.

HEARTLAND SWEETENERS, LLC. Ideal® Page: 3

(“What makes Ideal different than the other no calorie sweeteners on the market currently? … More than 99% natural.”). As the challenger discusses below, Ideal is not natural nor is it more natural than other artificial sweeteners. The challenger reiterated that, although portrayed as a natural product, the advertised Ideal sweetener actually derives the majority of its sweetness from the artificial sweetener sucralose and not from its touted xylitol. As the advertiser knows, the “sugar alcohol” in xylitol is roughly equal in sweetness to sucrose and just like sucrose, contains calories. In fact, the challenger stated, one teaspoon of xylitol contains approximately 10 calories (compared to 15 calories in the same amount of sugar). In order to create a low-calorie sweetener using xylitol, therefore, the advertiser must only use a small amount of this ingredient, resulting in a product that, without an artificial sweetener, would be less sweet than sugar. To overcome this obstacle and create a viable low-calorie sweetener using xylitol, some other high-intensity, no-calorie, sweetener must be added to provide Ideal’s sweetness. The advertiser chose to use the artificial ingredient sucralose to achieve this goal. The challenger provided the results of compositional testing conducted on a single packet (1.5 grams) of Ideal sweetener which, the challenger asserted, demonstrates that the majority of Ideal’s sweetness in fact comes from the artificial sweetener sucralose. This analysis, the challenger averred, is based on industry standard sweetness equivalency values for xylitol, Unidex (a bulking agent) and sucralose, and reveals that xylitol (with a sweetness equivalent to sucrose) contributes less than 20% (18.71%) of the overall sweetness of Ideal. In contrast, the artificial, high-intensity sweetener sucralose (which is nearly 600 times sweeter than sucrose) contributes nearly 80% (78.57%) of Ideal’s sweetness. The challenger noted that not only is this evidence unrebutted, but the advertiser has failed from the outset to provide any data of its own on this point (or to meet its burden of substantiating its “99% natural” claim.) Although perhaps sucralose may be a relatively small addition to the Ideal product by weight and volume, the challenger maintained that it is by far the most significant ingredient in Ideal in terms of the actual purpose and performance of the product as a sweetener. In fact, the challenger contended, Ideal would not be a viable sugar substitute if not for the addition of the artificial sucralose in its product. In other words, without the artificial sucralose performing the primary sweetness function, there simply would be no Ideal product. Nonetheless, the challenger asserted, consumers are improperly led to believe that they are actually purchasing an essentially “natural sweetener” or, at the very least, a sweetener that is more natural than competing products. To the contrary, they are actually purchasing a sweetener whose primary sweetening agent is man-made and, with regard to its “naturalness” is no different that the other artificial sweeteners on the market from which the advertiser distinguishes its ideal sweetener, Ideal. In support of its position, the challenger relied upon the Food and Drug Administration’s (“FDA’s”), long-standing policy that the term “natural” means that “nothing artificial or synthetic has been included in, or has been added to, a food that would not normally be expected

HEARTLAND SWEETENERS, LLC. Ideal® Page: 4

to be in the food.”2 Accordingly, the challenger argued, a consumer purchasing a sweetener that is repeatedly labeled “natural” or “more than 99% natural” would reasonably expect that it is free of artificial sweeteners and that the primary sweetening agent is not artificial, and not that 80% of the sweetness in that product came from an artificial sweetener. Notably, the challenger pointed out, all of the major artificial sweeteners on the market use cornbased bulking agents as their largest ingredient, in addition to a minor amount of artificial highintensity sweetener. For example, Equal contains mostly Unidex with a small amount (approximately 3% by weight) of aspartame; Sweet ‘n Low contains mostly dextrose with a small amount (also approximately 3%) of saccharin) and Splenda contains mostly Unidex with a small amount (approximately 1%) of sucralose. According to the challenger, the Ideal product is not different, except that it uses xylitol in combination with Unidex as its primary bulking agents. It was the challenger’s position that to allow the advertiser to claim or suggest that its product is natural would open the door all competitors to make the same claim by simply switching the bulking agents but continuing to use aspartame, saccharin or sucralose (as the case may be) as the active sweetening ingredient). No one, however, is suggesting that these other products can be properly labeled as “natural” and, likewise, the challenger asserted, the advertiser here should not. In further support of its position, the challenger relied upon the NAD precedent in Swiss Research, Inc., (Shugr Sweetener)3 which held that a sweetener containing sucralose as its primary sweetening agent could not be promoted as “natural” or “made with natural ingredients” Specifically, the challenger noted that NAD held in that case that, “the advertiser’s claim that its sweetener is ‘natural’ or ‘contains natural ingredients’ reasonably conveys the message that all of the significant sweetening agents and certainly the primary sweetening agent are not artificial. Here, not only does Shugr undisputedly contain an artificial sweetener, but that artificial sweetener (sucralose) provides almost two-thirds of Shugr’s sweetness.”4 Indeed, the challenger pointed out, NAD held that, “[t]he mere presence of sucralose at all in its product precluded the advertiser’s ‘natural’ claims.”5 In the Shugr case, where the advertiser touted its sweetener as “natural” when its primary sweetening agent (sucralose) was undisputedly artificial and where the advertiser offered no compositional testing regarding its product’s sweetness,6 in the absence of any scientific data contradicting the challenger’s compositional testing demonstrating that sucralose was the primary sweetener in the product, NAD found that the advertiser’s “natural” claims were unsupported and recommended that they be discontinued. The challenger contended that the instant matter warrants no different a conclusion.

2

58 FR 2302-1, 1993 FDA Food Labeling Final Rulemaking See, Swiss Research, Inc., (Shugr Sweetener), Report #4442, NAD/CARU Case Reports (January 2006). 4 Id. at 16 5 Id. at 17 6 In that case, the advertiser provided only self-serving declarations of its counsel and CEO to the effect that the challenger’s data was unreliable. 3

HEARTLAND SWEETENERS, LLC. Ideal® Page: 5

The challenger asserted that by not providing any countervailing evidence – or addressing the point at all, the advertiser essentially concedes that sucralose provides the vast majority of Ideal’s sweetness. In fact, the advertiser itself stated that, all of the ingredients in Ideal are natural products “other than the [small amount of sucralose in the product.]”7 In recognition of this fact, and in an attempt to deflect the controlling impact of NAD precedent in the Shugr case, the advertiser acknowledged that its “natural” claim is not accurate and agreed to withdraw its unqualified “natural” claims, however, the challenger rejected the advertiser’s proposal that it be allowed to continue its claims that Ideal is “more than 99% natural” based on the argument that 99% of Ideal’s ingredients “by weight or volume” are natural. The challenger contended that the proposal suggested by the advertiser is reminiscent of that made by the advertiser in the Shugr case where NAD considered – and rejected – just such a modified claim.8 In that case, the advertiser similarly abandoned its “natural” claims and offered to revise its advertising to state that Shugr “contains natural ingredients” or is “made with natural ingredients.” NAD rejected this proposal stating, “[A] consumer purchasing a sweetener repeatedly labeled and promoted as “natural” (or even, as offered as modified, ‘containing natural ingredients’) … could reasonably expect it to be free of artificial sweeteners … [T]he advertiser’s claims that its sweetener is ‘natural’ or “contains natural ingredients’ reasonably conveys the message that all of the significant sweetening agents and certainly the primary sweetening agent are not artificial … [T]he advertiser’s offer to modify its claims to read “made with natural ingredients” does little to dispel the message conveyed – i.e., that the consumer is purchasing a ‘natural sweetener’ … when what he or she is really purchasing a sweetener whose primary sweetening agent is man-made.” The challenger asserted that there is virtually no distinction between the instant matter and the set of facts and claims in the Shugr case and, if anything, the instant “more than 99% natural” claim is even closer to an unqualified “all-natural” claim than the “contains” or “made with natural ingredients” proposed claim that NAD rejected in the Shugr case. In fact, the challenger argued, NAD’s conclusion in Shugr applies equally here: “[L]ike others in its product category, [Ideal] is an artificial sweetener in that[] what makes it sweet is not natural….[S]ucralose (regardless of its being the smallest category by weight) is the primary sweetening agent in [Ideal] – indeed, sucralose is [Ideal’s] raison d’etre – as without it, there is no [Ideal].”9 As in that case, the challenger posited, the proposed claim “more than 99% natural” misleads consumers because it falsely communicates that Ideal’s key ingredients – including its primary sweetening agent, sucralose – are natural. Moreover, the challenger argued, the advertiser’s proposal ignores the material fact that sucralose is not just another ingredient or filler in the advertised product but, rather, is the central ingredient responsible for the vast majority of Ideal’s sweetness (as noted in the challenger’s compositional evidence).

7

Citing the advertiser’s submission to NAD. Id. 9 Id. 8

HEARTLAND SWEETENERS, LLC. Ideal® Page: 6

The challenger contended that the advertiser, unable to sustain its burden to substantiate its “99% natural claims” with its own data or offer any evidence to refute the challenger’s compositional testing, offers instead a series of contradictory and unpersuasive criticisms of the challenger’s testing and attempts to distract NAD by ignoring its use of sucralose and, rather, focusing on the xylitol in its product. The challenger also rejected the advertiser’s discussion about consumer survey data about taste tests for different sweeteners (not about its claims), as ignoring the central issue at hand and attempting to substantiate straw-men claims not at issue in this challenge. As such, the challenger asserted, the advertiser’s taste tests and decision to include xylitol as a secondary sweetening agent in its product are irrelevant. The advertiser offered three consumer taste-preference tests and a marketing survey describing consumers’ reactions to the term “natural.” However, the challenger argued, none of this information supports the advertiser’s claims. In any event, the challenger argued, even if these taste preference surveys were valid, they are wholly irrelevant to the claims at issue. The issue, the challenger contended, is not whether consumers prefer the taste of Ideal to that of other sweetener products but, rather, the fact that the majority of Ideal’s sweetness comes from an artificial ingredient which renders the advertiser’s “natural” and “more than 99% natural claims” false and misleading. The challenger also rejected the advertiser’s consumer perception survey report (in which respondents were asked to react to various advertising claims involving the term “natural”) and argued that this data actually confirms the challenger’s position that the “more than 99% natural” claim is misleading. The advertiser suggests that this data supports its argument that its “more than 99% natural” claim is not misleading because, to some consumers, the difference between 99% natural and all natural was not important. However, the challenger countered, this data reveals that a significant number of consumers are confused. The report showed that 27% of respondents either agreed or strongly agreed that “99% natural” and “all natural” mean the same thing. As the advertiser has already conceded that its “natural” claim is false it must be discontinued.10 As for the advertiser’s criticism of the challenger’s compositional testing, the challenger noted that, in the first instance, despite the central role this factor plays in the instant challenge, the advertiser failed to provide any data of its own as to the contribution of sucralose to its product’s sweetness. Insofar as the advertiser asserts that this industry standardized test is unreliable because it is based on tests of ingredients dissolved in water and because it involves a test panel’s subjective impressions regarding sweetness, the challenger rejected these criticisms. In the first instance, the challenger noted, the advertiser’s own taste tests all involve taste comparisons of sweetener products when dissolved in water. Secondly, as pertains to the subjectivity of equivalence values of the various sweeteners, the challenger argued that such a criticism is surprising because the only evidence offered by the advertiser that even remotely addresses the relative sweetness of Ideal’s ingredients comes in the form of the personal taste 10

Contrary to the advertiser’s suggestion, the challenger is not requesting that the advertiser change the name of its product (which is simply named “Ideal”).

HEARTLAND SWEETENERS, LLC. Ideal® Page: 7

opinion of its CEO Teodor Gelov. The challenger asserted that the sweetness equivalency values submitted are reliable – a fact of which the advertiser is well aware. The challenger also noted that the advertiser admits the crucial importance of sucralose to its product when it concedes that it used sucralose, “to meet the functioning sweetening need for Ideal.”11 By the advertiser’s own admission, without sucralose Ideal would be unable to satisfy its essential function as a sweetener, nor could it be labeled as a no-calorie sweetener which, again, it admits was crucial to its efforts. Given the importance of sucralose to its product performance as a no-calorie sweetener, the challenger asserted that the advertiser’s attempts to suggest that this case concerns the benefits of xylitol are meritless. Regardless of whether xylitol is natural, contributes to the product’s taste profile or possesses certain health benefits are simply not the issue in the case. Moreover, the challenger stated that it is not suggesting that the advertiser cannot make truthful, accurate claims about xylitol as an individual ingredient. However, the challenger stated, the advertiser’s “natural” claims are about the product, and the majority of this product’s sweetness comes not from xylitol but from sucralose, rendering the claims misleading.12 To the extent that the advertiser touts the alleged breakthrough benefits of its “xylitol-based” product and claims that it is different than the other no-calorie sweeteners on the market, the challenger countered that Ideal is no different with respect to the amount of natural ingredients than a host of other competitive sweeteners on the market. Indeed, the advertiser acknowledged that other sweeteners containing xylitol already exist. The purported “breakthrough”, the challenger urged is that the advertiser used a second artificial sweetener to deliver the majority of the product’s sweetness but its formula is little different in this respect from other low-calories sweeteners such as Splenda or Equal (with the respective artificial sweetening agents, sucralose and aspartame). As in Ideal, the sweeteners in these two other products are blended with dextrose and maltodextrin (or Unidex) which are corn-based bulking agents. Using the advertiser’s rationale (based on the relative weights of these products’ ingredients), both of these products would be entitled to advertise themselves as being 99% or 97% natural, respectively – even though both products gain the majority of their sweetness from artificial ingredients. Lastly, the challenger asserted that the advertiser’s reliance on product labeling guidelines promulgated by the FDA Regulations and the National Ingredient Resource Center Regulations (“NIRC”) as support for its “99% natural” claims is misplaced. In the first instance, the challenger noted that NIRC is not a food or ingredient trade group, but a consortium of personal-

11

Citing advertiser’s submission to NAD. In this regard, the challenger noted that the advertiser’s discussion of xylitol illustrates why its claims are problematic. The advertiser sought to develop a no-calorie sweetener comprised primarily of xylitol, which it wanted to market as a natural sweetener. However, pure xylitol proved problematic as a sugar substitute because it is not significantly sweeter than sugar or significantly less in calories. As such, the advertiser could not create a nocalorie sweetener using only xylitol. To overcome this problem and create a no-calorie sweetener with enough sweetness, the advertiser had to add sucralose – the high-intensity, artificial, sweetening agent that allows Ideal to exist as a no-calorie product. At the same time, the advertiser decided to adhere to its original marketing plan and misleadingly advertised its product as “natural”.

12

HEARTLAND SWEETENERS, LLC. Ideal® Page: 8

care product (for the home and family) manufacturers and while these guidelines might be relevant to products such as shampoos and lotions, they do not apply to foods. Likewise, the challenger contended that the advertiser’s argument that FDA has not categorically banned the use of the term “natural” when describing non-all-natural products is a red herring. According to the challenger, the FDA has a long-standing policy “regarding the use of ‘natural’ as meaning that nothing artificial or synthetic … has been included in, or has been added to, a food that would not normally be expected to be in the food.”13 Contrary to the advertiser’s suggestion, the challenger posited that this guidance does not mean that an advertiser can never describe a product as “natural” but, rather, this simply means that advertisers cannot claim a food is “natural” when it contains an artificial ingredient that consumers would not normally expect to be present in the food. In other words, the FDA’s policy prohibits precisely the type of labeling claim being made here where the advertiser touts that its sweetener product is “natural” or “more than 99% natural.” Consumers would reasonably expect the product to be free of artificial sweeteners and certainly would expect that the primary sweetening ingredient is not artificial. The Advertiser’s Position: Preliminarily, the advertiser noted that it has discontinued its claims that contain the term “natural” when it is not used in close conjunction with information that Ideal is “more than 99% natural.” Therefore, all claims of “100%” or “all-natural” have been permanently discontinued including advertising containing the claims, “Natural! No calorie Sweetener”, “everyone loves IDEAL, the new natural sweetener that tastes like sugar, bakes like sugar, without the calories.” The advertiser argued that its claims that Ideal is “more than 99% natural” are neither false nor deceptive but, rather, wholly supported. The advertiser contended that the natural sweetener in its product, xylitol, is the main ingredient, a natural sweetener, and adds significant sweetness to its product and not in a minor amount, as the challenger suggests. According to the advertiser, as contained in the packet formulation (as tested by the challenger), the majority of its Ideal product is Xylitol (followed by Unidex, and a small amount of sucralose), by weight, and the bulk of what the consumer ingests.14 The key ingredient and main selling point of Ideal is that it is primarily a xylitol product – a significant breakthrough in being able to deliver a mainstream xylitol product. Contrary to the challenger’s claims, the advertiser asserted that xylitol is the key component for its product’s specific taste and sensation profile. The advertiser explained that the xylitol in its product gives Ideal a specific look, feel and sensation in a variety of applications and is not a mere “filler” as the challenger implies. In fact, the advertiser maintained, Ideal is one of the few sweetener alternatives that has been preferred over sugar itself and this is not true for sucraloseonly products.15

13

citing 58 FR 2303-1, 1993 FDA Food Labeling Final Rulemaking Likewise, as a bulk product, Ideal is primarily comprised of Xylitol, followed by Unidex and a small percentage of sucralose. Specific percentages provided to NAD and the challenger for purposes of the instant proceeding. 15 The advertiser noted that a standard sucralose-only product will contain at least twice the amount of sucralose. 14

HEARTLAND SWEETENERS, LLC. Ideal® Page: 9

Insofar as the challenger relies upon its compositional testing, the advertiser countered that this sweetness equivalency data is based upon a subjective taste panel for products dissolved in water. However, the advertiser noted, its Ideal product is targeted to be used in the same applications as sugar-over fruit, out of the bowl and in baking. The ability to simulate sugar’s appearance, feel and superior taste than other alternative sweeteners is delivered by xylitol. The advertiser, noting that the challenger failed to provide any evidence that consumers are being misled by its claims, argued that there is no reason to believe that a sweetener labeled as being 99% natural is referring to (or implying) the relative sweetness contribution of a particular ingredient rather than the overall ingredients in the product or that consumers would take away such a message – particularly since it expressly claims that the product is 99% natural (adjacent to a complete ingredients list.) Further, the advertiser argued that a “99% natural” claims does not mean, literally or implicitly, that most or all sweetening is provided by natural ingredients. In fact, the advertiser pointed out, there is nothing in the language (or grammar) of its claims expressly stating or implying that all of the sweetness in its product is natural. It was the advertiser’s position that health-conscious consumers shopping for sweetener alternatives – as opposed to those seeking non-health-related low cost products – are more sophisticated, pay closer attention to details, and are able to read the ingredient list on the packaging to see that sucralose is, in fact, an ingredient. Additionally, the advertiser stated that its consumer surveys support its position that consumers would not be misled by the challenged claims and prefer its Ideal sweetener to other sweeteners and even sugar. In fact, the advertiser contended, its evidence demonstrates that the difference between the terms “all natural” and “mostly natural” is not a dramatically important to some consumers and to some, the most important factor is the price differential between “all natural” and “99% natural” products. According to this study, consumers would buy 99% natural products if it were less expensive than all natural products,16 and consumers wanted their sugar substitutes to contain some natural ingredients.17 The advertiser also argued that barring the use of the term “natural” in promoting its product would actually harm consumers. According to the advertiser, while xylitol is a key selling point of its product, it is not generally known or accepted in mainstream consumer outlets. The advertiser’s goal was to develop a product comprised primarily of xylitol and to extol the benefits of this ingredient to the consumer. The advertiser explained that it faced hurdles in developing a product using xylitol as the primary ingredient because (1) xylitol is relatively expensive; (2) does not freely flow; and (3) does not have a calorie count significantly lower than sugar. Despite these difficulties, the advertiser created Ideal, a xylitol based, low-calorie sweetener that is at a price point comparable to other sweeteners. The advertiser explained that xylitol is a naturally occurring sugar alcohol – similar to erythritol18 – that is found in virtually all fruits and vegetables and is produced by the human body as part of its everyday metabolism. According to the advertiser, it is xylitol that is the key 16

In the advertiser’s consumer study, only 31% of respondents disagreed with this statement. 300 out of 500 respondents said they wanted some natural ingredients. 18 Comprises approximately 95% of Merisant’s “all natural” sweetener PureVia. 17

HEARTLAND SWEETENERS, LLC. Ideal® Page: 10

ingredient in Ideal that adds the significant attributes of sweetness, taste, look and mouth-feel. Moreover, the advertiser contended, the challenger’s argument that Ideal could not be possible without sucralose is overly broad because it is applicable to any of the three ingredients and true for all sweeteners. The advertiser stated that sucralose, xylitol and Unidex are all important and necessary ingredients in its product and that if such were not the case, there would be no point in including them. It was the advertiser’s position that, as a significant portion of Ideal’s taste profile, the inclusion of the ingredient xylitol in its product would substantiate any implied claims that consumers would perceive about the main ingredient being natural. The advertiser contended that, if sucralose were the main ingredient, as the challenger contends, Ideal would not have a dramatic difference in taste from other sucralose sweeteners, which it does. However, according to the consumer taste survey submitted by the advertiser (wherein participants compared the taste of its Ideal to Splenda, TruVia and sugar), the results demonstrated otherwise. According to this study, Ideal scored higher than Splenda at a 95% confidence level for overall liking, overall flavor and intent to purchase, and also scored higher than TruVia sweetener and sugar. The advertiser contended that if sucralose were the main ingredient, there should be no significant difference between Ideal and Splenda.19 Moreover, the advertiser stated that the challenger’s repeated argument that its consumer survey is proof of consumer confusion is disingenuous at best. Contrary to the challenger’s assertion that 27% of consumers answered that 99% natural and 100% natural mean the same thing, the advertiser countered that what the evidence actually revealed was that to a significant segment of the population, the difference between 99% and 100% natural is simply not important to them – not that they don’t understand the difference between the two. In other words, some consumers do not have high concerns about the specific percentage of a natural product. The advertiser also took issue with the challenger’s compositional testing, arguing that the contributing sweetness of all sugar alternatives “cannot be determined by a simple mathematical formula of ‘industry standard sweetness equivalency values.’” (emphasis supplied) Indeed, the advertiser asserted, the challenger’s entire argument regarding the percentage of sweetness contribution of its product’s ingredients is simplistic and does not adequately deal with the taste profile of its product as a whole. According to the advertiser, scientific studies have shown that the sweetness equivalency standards – developed based on sweeteners and sugar dissolved in water – are highly subjective, inexact, and not reflective of real use.20 For example, the industry recognized that the sweetness equivalence is different for every situation in which the sweetener is presented (acidity, backing, fat content, etc.)21 In short, the advertiser maintained, any statement that a certain percentage of sweetness is derived from sucralose as opposed to xylitol is simply only as true as the subjective opinions of a particular panel with a product dissolved in water only. 19

Splenda is a sucralose based artificial sweetener. Citing CRC Handbook of Food Additives. 21 Citing Food and Nutrition, Australia, Asia and the Pacific, Wahlquist, Mark L., p. 106. (“Caution should be used in extrapolating the results from a simple aqueous solution to a complex system such as food.”) 20

HEARTLAND SWEETENERS, LLC. Ideal® Page: 11

Further, the advertiser noted, the tasting of sweetness is a relatively complex concept. The advertiser explained that, as a natural product and a nutritive sweetener, xylitol can play an important brain response role in consumer perception. The sweetness of sucralose or the sweetness and cooling of xylitol are not the only things perceived by the consumer. Rather, when sweet things come into contact with the tongue, there is an initial sweetness, delayed sweetness, a lingering effect and, thereafter, other complex factors such as flavors and tastes, including bitter, metallic as well as “mouth feel.” The advertiser argued that xylitol provides the key to Ideal’s sweet taste as well as its sugar-like look and feel, which are all just as important as the taste receptor response to consumers. Thus, the advertiser argued, although sucralose provides an additional sweetening effect to meet the functional sweetening need for Ideal, it is xylitol that provides the product’s distinguishable and preferred taste. The advertiser also noted that Ideal has nutritional benefits derived from xylitol – health benefits that have been recognized by the American Dental Association and other studies.22 Xylitol cannot be metabolized by oral bacteria, which prevents acid production leading to tooth decay, and it has also been found to reduce plaque, fight cavities, facilitate the re-mineralization process, relieve dry mouth, assist in calorie control and blood glucose levels, and reduce ear infections. Therefore, with all the purported health benefits, xylitol is more than a filler ingredient as the challenger posits and, rather, is a key component in Ideal. To the extent that the challenger relies upon NAD precedent in the Shugr case23 in support of its position, the advertiser countered that that case is distinguishable from the present matter because the claims made in Shugr were never properly qualified. Here, the claims for Ideal, the advertiser explained, makes clear that Ideal is “99% natural”. In fact, the advertiser noted, one of the central tenets to the challenger’s arguments in the Shugr case was that the advertising conveyed a 100% natural message. In contrast, the advertiser informs consumers on the front panel of its product packaging that its product is not “all natural” or “100% natural” and contended that there is no language that would lead consumers to believe that all the sweetening is derived from all natural ingredients. Lastly, the advertiser argued that the FDA has not precluded the use of “natural” in the context in which it is used here but, interestingly, has actually declined to define the term “natural.” The advertiser contended that there is no rule or regulation stating that the word “natural” cannot be used on product packaging if a product that contains artificial ingredients or if a product is not 100% natural. Rather, the advertiser asserted, the term “natural” may be used on a product with artificial ingredients based upon an examination of the context in which it is used.24 Indeed, the advertiser pointed out, if the challenger’s position is correct, the challenger should not be able to (but does) highlight the “natural flavorings” in its partially natural product “sweet Mate” zerocalorie sweetener. 22

i.e., the Ylivieska study, wherein between 1982-1984, children aged 11-12 who consumed 7-10 grams of Xylitol daily in chewing gum exhibited a 30-60% reduction in new dental caries development as compared to those who did not chew the gum. 23 Swiss Research, Inc., (Shugr Sweetener), Report #4442, NAD/CARU Case Reports (January 2006). 24 Citing Tom’s of Maine, Case #3470, NAD/CARU Case Reports (1998)

HEARTLAND SWEETENERS, LLC. Ideal® Page: 12

Moreover, the advertiser contended, the National Ingredient Resource Center (“NIRC”) has created National Product Labeling Guidelines based on USDA organic food labeling guidelines. The advertiser explained that these guidelines provide a distinction between “100%” or “all natural” and “natural,” where claims of “natural” only require that 95% of the ingredients be considered natural ingredients (and the remaining 5% may come from ingredients that do not meet the NIRC criteria for natural and all percentages are based on weight. DECISION: Preliminarily, while NAD appreciated the advertiser’s voluntary discontinuance of the use of the term “natural” in certain contexts, as these claims were not discontinued prior to the initiation of the instant challenge, NAD’s decision (below) will address the “natural” claims in addition to the “more than 99% natural” claims. Health conscious consumers are increasingly turning to sugar substitutes in their diets to reduce the amount of calories. For decades, nonnutritive sugar substitutes have allowed healthconscious consumers to have their sweets while avoiding the caloric and cavity-inducing pitfalls of sugar. Such sweeteners, also known as intense sweeteners, alternative sweeteners, low-calorie sweeteners, and artificial sweeteners inundate the marketplace. Concomitantly, however, for some consumers, controversy exists as to the safety of these nonnutritive artificial sweeteners. As such, through the years, consumers’ desire for low-calorie, natural sugar substitutes has grown. To this end, the industry has now, for the first time, introduced zero-calorie all-natural sugar alternatives developed from stevia plant leaf to the market in products like TruVia and the challenger’s PureVia. TruVia is comprised of erythritol,25 rebiana (derived from the stevia leaf), erythritol, and natural flavors.26 PureVia derives its sweetness from all-natural Reb A (stevia extract), erythritol, isomaltulose (found in honey and sugar cane juice), cellulose powder, and natural flavors.27 These products are truly no/low calorie, all natural sugar substitutes in that they derive all of their sweetness from natural ingredients. It is undisputed that the advertiser’s Ideal sweetener product contains sucralose. It is also undisputed that sucralose is not a natural ingredient but, rather, as stated in the Shugr case,28 is a man-made sweetening agent that is not found in nature. At the same time, it is undisputed that the advertiser’s Ideal formulation, by weight, is mostly xylitol with a small amount of sucralose (along with Unidex).29

25

An undisputed natural sweetener found in fruits such as grapes, pears and melons (see, http://truvia.com/about/ingredients/default.aspx; http://www.purevia.com/Faq.aspx#answer2 26 http://truvia.com/about/ingredients/default.aspx 27 http://www.purevia.com/Faq.aspx#answer2 28 Swiss Research, Inc., (Shugr Sweetener), Report #4442, NAD/CARU Case Reports (January 2006). 29 Both in packet and bulk form.

HEARTLAND SWEETENERS, LLC. Ideal® Page: 13

In response to the instant challenge, the advertiser provided the declaration of its CEO Teodor Gelov who discussed the various bases upon which it was decided to develop a sugar substitute using xylitol including, but not limited to, its taste profile and strong initial sweetness, its retention of taste even under heat, and its health benefits. Mr. Gelov stated that his company uses the high intensity sweetener sucralose to balance out the initial (but diminishing) sweetness of xylitol and to assist in keeping the sweetener in the zero calorie range but the xylitol in Ideal is a major component of the product and its taste profile. Even accepting the advertiser’s position that the Xylitol in Ideal (a natural ingredient) adds significant sweetness to the “taste profile” of the product, it is not (as the advertiser acknowledged) without its disadvantages. As such, the advertiser was faced with the challenge of creating a product largely based (by weight) in xylitol, while keeping the caloric count low, yet providing consumers with sweetness levels comparable to the taste of sugar which, undisputedly, xylitol alone cannot meet. By necessity, therefore, the advertiser had to include an artificial sweetener, sucralose, in its product to achieve this end. The challenger’s evidence demonstrated that sucralose, although comprising less than 1% of the weight of Ideal, provides approximately 80% of the product’s sweetness in the packet form, and 65% of the sweetness (per spoonful) in the bulk product.30 The advertiser countered that this data is inconsequential because, according to the CRC Handbook of Food Additives, the contributing sweetness of sugar alternatives cannot be determined by simple mathematical equation or highly subjective panel studies based on sweeteners dissolved in water. Given that sucralose only appears in its product in a small amount (by weight), the advertiser argued that it is permitted to describe its product as “99% natural” or “more than 99% natural.” NAD did not agree. Notwithstanding the opinion offered by the advertiser via the CRC Handbook of Food Additives, the fact remains that the challenger offered accepted industry standardized testing in support of its position that sucralose is the major contributing factor in terms of the sweetness of Ideal. The advertiser offered no scientific evidence refuting this data. Moreover, NAD could not ignore that the advertiser in its own consumer testing, derived its results from precisely the same methodology (i.e., having participants tasting sugar alternatives dissolved in water.). To the extent that the advertiser repeatedly states that it is the xylitol that gives Ideal its “unique flavor” or that this component contributes significantly to the product’s “taste profile” and other language of the sort, NAD acknowledged that such may well be the case. NAD does not question that the xylitol in the advertiser’s product adds to the sweetness or even comprises a significant portion of Ideal’s taste profile. The question for NAD, however, is whether those particular ingredients which account for a product’s sweetness – when that product is touted as a “more than 99% natural” sweetener – are in fact natural, as consumers might reasonably believe.

30

Of note, in Swiss Research, Inc., (Shugr Sweetener), Report #4442, NAD/CARU Case Reports (January 2006), sucralose accounted for approximately 60% of the product’s sweetness. In the instant case, compositional testing demonstrated that the sucralose in Ideal accounts for approximately 80% of the product’s sweetness.

HEARTLAND SWEETENERS, LLC. Ideal® Page: 14

It is well established that an advertiser is obligated to support all reasonable interpretations of claims made in advertising including messages it may not have intended to convey.31 In the absence of any communication data concerning messages that consumers could reasonably take away from the challenged advertising and product packaging claims, NAD uses its own expertise to evaluate whether any implied messages were conveyed.32 Keeping in mind that any claim found to be implied by NAD need not be the only message conveyed by an advertisement, it need only be one of the reasonable messages conveyed by an advertisement,33 NAD determined that a consumer purchasing a sweetener repeatedly labeled and promoted as “natural” or “more than 99% natural, and “different from the other no calorie sweeteners on the market [because it is] [m]ore than 99% natural”, could reasonably expect it to be free of artificial sweeteners and would not recognize, from the challenged advertisements, that Ideal gets its sweet taste, in large part, from an artificial substance. While it is true that, by weight, the product as a whole may be “more than 99% natural”, NAD precedent makes clear that although a claim may be literally true, the context in which it is presented may still cause it to convey a message that is false or misleading to consumers.34 According to the evidence in the record, while xylitol may contribute to the taste profile of Ideal, the product’s sweetness is not due primarily to xylitol but, rather, the synthetic sucralose contained therein. Indeed, Mr. Gelov acknowledged that because of the calories in xylitol it would not be possible to have created Ideal sugar substitute without the inclusion of sucralose – a man-made artificial sweetener. Thus, the artificial ingredients that make up the 1% of the advertiser’s product are not inconsequential or by any means insignificant. In other words, without sucralose there simply is no Ideal. The advertiser posits that if Ideal were truly just a sucralose sweetener in disguise (as the challenger’ suggests), then there would be no dramatic difference in taste testing between its product and Splenda (a sucralose sweetener), when that was not the case. While it is true that the advertiser’s taste survey demonstrated that Ideal scored higher than Splenda for overall liking, overall flavor and intent to purchase (and also scored higher than TruVia sweetener and sugar), this misses the point. The question before NAD is not whether consumers prefer the taste of the Ideal to competitive sweeteners (or even sugar), but rather, whether the source of Ideal’s sweetness is natural or not, as consumers might expect, even if xylitol contributes to the taste

31

See, The Valvoline Company (Zerex G-05 Extended Life Antifreeze), Report #4375 (August 2005); McNeil, PPC, Inc. (Tylenol Arthritis Pain), Report #4247, NAD/CARU Case Reports (November 2004); Bayer Corporation (Aleve), Report #4126, NAD/CARU Case Reports (December 2003). 32 See, The Valvoline Company (Zerex G-05 Extended Life Antifreeze) supra; Bayer Corporation (Aleve), supra. 33 See, Lenovo (United States), Inc. (Personal Computers) Report #4820, NAD/CARU Case Reports (March 2008); Sanderson Farms (Sanderson Farms Chicken), supra; see also, Snapple Beverage Corporation (Snapple-a-Day Meal Replacement), Report # 4132, NAD Case Report (January 2004) 34 See, The Gillette Company (Venus Divine Shaving System for Women), Report #4305, NAD/CARU Case Reports (April 2005); The Procter & Gamble Company (Swiffer Dusters), Report #4226, NAD/CARU Case Reports (September 2004).

HEARTLAND SWEETENERS, LLC. Ideal® Page: 15

profile.35 Moreover, even assuming that consumers preferred the taste or flavor of Ideal to Splenda, the data presented demonstrates that the sweetness levels are the virtually the same between these two products. But again, taste preference claims are not at issue in the instant challenge. The advertiser acknowledged that “sucralose provides an additional sweetening effect to meet the functional sweetening need for Ideal…” but argued that it is xylitol that provides the product’s distinguishable and preferred taste. While Ideal’s taste may well be distinguishable, (or preferred), the question is not whether Ideal’s taste is distinguishable from or preferred to other sugar substitutes but whether the sweetener (or that which makes the product sweet) is “natural” or “more than 99% natural.” The advertiser noted that FDA does not categorically prohibit an advertiser from claiming that its product is “natural” when all of the ingredients are not natural. As in the Shugr case,36 NAD acknowledged that the FDA’s policy regarding the use of the term “natural” states that, “FDA is not undertaking rulemaking to establish a definition for "natural" at this time [and t]he agency will maintain its current policy not to restrict the use of the term "natural" except for added color, synthetic substances, and flavors as provided in § 101.22.37 However, NAD noted, subsequent pertinent language states, (emphasis added): Additionally, the agency will maintain its policy … regarding the use of “natural,” as meaning that nothing artificial or synthetic … has been included in, or has been added to, a food that would not normally be expected to in the food.38 Thus, as NAD held in the Shugr case, FDA policy suggests that, in instances where an artificial ingredient is added to a food product that would not normally be expected to be in that food, such a food product may not call itself “natural.”39 In Shugr, NAD determined that consumers would reasonably expect that a product touted as a “Natural Sweetener” would not contain a sweetener that is not natural, let alone one that is primarily responsible for that product’s sweetness. As 35

To the extent that the advertiser relies upon its consumer study for the proposition that consumers are simply not concerned with the specific percentages in its sugar substitute, NAD observed that this survey asked, “Please indicate your agreement/disagreement with the following product claims: (01) All-natural and 99% natural mean the same thing.” Over 27% either agreed or strongly agreed with this statement. These responses, NAD determined, could not be taken to mean that consumers were not “concerned” with the percentages in a touted natural product. Indeed, that specific question was never asked. Rather, taken literally, NAD determined that this simply confirms that the respondents saw no appreciable difference between these two percentages. In fact, however, as the record demonstrates, there is a significant difference between products such as TruVia or PureVia and the advertiser’s Ideal in that the former are 100% natural sugar substitutes that derive all of their sweetness from natural ingredients. 36 Swiss Research, Inc., (Shugr Sweetener), Report #4442, NAD/CARU Case Reports (January 2006). 37 58 FR 2302-1, 1993 FDA Food Labeling Final Rulemaking. 38 Id. 39 Similarly, although NAD is not stating that the advertiser must comply with standards applicable to meat and poultry products, NAD noted that USDA policy, is similarly, instructive. United States Department of Agriculture policy dictates that “the term ‘natural’ may be applied only to products that contain no artificial ingredients, coloring ingredients, or chemical preservatives …” http://www.fsis.usda.gov/OPPDE/larc/Claims/Organic_Claims.htm citing USDA Policy Memo 055 (November 22, 1982).

HEARTLAND SWEETENERS, LLC. Ideal® Page: 16

such, NAD determined that labeling and advertising its product as “natural” would appear to be in contravention of FDA policy regarding such claims. Similarly, in the instant case, NAD determined that consumers would reasonably anticipate that a product that claims that it is “natural” or “more than 99% natural” sweetener, and “different from the other no calorie sweeteners on the market [because it is] More than 99% natural”, coupled with its green leaf-like logo, would not contain any sweetening agents that are not natural. Moreover, as NAD noted in Shugr that simply because federal regulations do not explicitly prohibit labeling a sugar substitute product as “natural” does not mean such claims will meet the standards imposed by advertising law, i.e., that they be truthful, accurate and not misleading. Ideal, like others in its product category, is an artificial sweetener in as much as that which makes the product sweet is not natural.40 Although the advertiser attempts to distinguish its claims from those in the Shugr case, NAD determined that in doing so, the advertiser ignores the overall net impression conveyed by its advertising. It is the advertiser’s position that, unlike the factual scenario in Shugr, it clearly conveys that its product is “more than 99% natural” (as opposed to simply “natural”, without qualification.) This is a distinction without a difference. Given the product category to which the advertiser’s Ideal belongs (artificial sweeteners), NAD determined that the promotion of any such difference as being in any way significant (as touted in the instant advertising) is misleading. Virtually all competing sweeteners contain both artificial and natural sweeteners (and natural fillers): the challenger’s Equal contains maltodextrin; Sweet ‘n Low contains dextrose, and even Splenda contains dextrose and/or maltodextrin. At the same time, all of these sweeteners also contain a synthetic ingredient giving their products that ultimate level of sweetness that consumers seek – but none of these products call themselves “natural” or even suggest that their products are “natural” by inclusion of the phrase “made with natural ingredients” or “contains natural ingredients” – and correctly so as they are, by definition, artificial sweeteners. NAD concluded that the advertiser’s claim that its sweetener is “natural”, “99% natural” or “more than 99% natural” reasonably conveys the message that all of the significant sweetening agents and certainly the primary sweetening agent are not artificial,41 and that the remaining 1% of unnatural or artificial ingredients is inconsequential or immaterial. Here, not only does Ideal contain an artificial sweetener but (regardless of its presence in the product by weight), the artificial sweetener (sucralose) contained in the product provides approximately 80% of the product’s sweetness. Considering the audience to whom this product is directed, health conscious consumers seeking low or no-calorie sugar substitutes (or sweetening agents) that are not artificial, together with the 40

To the extent that the advertiser lies upon the NIRC’s National Product Labeling Guidelines which provide a distinction between “100%” or “all natural” and “natural”, NAD simply notes that these guidelines apply to personal care products, not food products and, therefore, are inapplicable to the instant matter concerning artificial sweeteners meant to be ingested by consumers. 41 See, Swiss Research, Inc., (Shugr Sweetener), supra.

HEARTLAND SWEETENERS, LLC. Ideal® Page: 17

fact that the sweetness in its product is due primarily to sucralose – a man-made substance, NAD determined that it was not accurate for the advertiser to promote its artificial sweetener, Ideal, as “natural” or as “more than 99% natural” or as being “different from the other no calorie sweeteners on the market [because it is] More than 99% natural”, and recommended that the advertiser discontinue these claims. 42 Likewise, NAD was troubled with the advertiser’s claim that “Ideal is the perfect alternative to sugar and sugar substitutes because it … is made with Xylitol, a natural sweetener found in fruits and vegetables.” The advertiser purports to distinguish its product from other sugar substitutes on the basis of the inclusion of the natural sweetener Xylitol. However, this does not tell the entire story. Other sugar substitutes (such as Shugr with erythritol), contain natural sweetening agents but, like the advertiser’s Ideal, also contain sucralose – an artificial sweetener. At the same there, there now exist sugar substitutes such as TruVia and PureVia that derive all of their sweetness from natural ingredients. While NAD acknowledges that the advertiser intended to distinguish its product on the basis of the particular ingredient xylitol, the advertiser is selling a sugar substitute (sweetening) product, as a whole, and the majority of this product’s sweetness – according to the only objectively provable testing in the record – derives from an artificial ingredient. As such, while NAD nothing in this decision precludes the advertiser from touting that its product includes the natural sweetening agent xylitol, NAD recommended that the advertiser discontinue its claims distinguishing its product from other sugar substitutes on the market on the grounds that it is a natural sweetening product. Further, notwithstanding the above, nothing in this decision precludes the advertiser from extolling the many positive attributes of xylitol (health, dental, benefits, better free-flow in cooking, etc.) or that it has a unique or preferred taste profile (to the extent that such claims are supported) thereby distinguishing its product from other sugar substitutes. Lastly, to the extent that the advertiser relies upon the case of Tom’s of Maine Natural Mouthwash),43 in support of its position that the term “natural” may be used on a product that contains a small amount of artificial ingredients, based upon an examination of the context in which that term is used, the instant case is readily distinguishable. Like the advertiser in Tom’s of Maine, the advertiser here seeks to distinguish its product from its competitors and does so expressly by stating that it is “different from the other no calorie sweeteners on the market [because it is] More than 99% natural.” NAD determined that even if 42

To the extent that the advertiser argued that if the challenger’s position as to the FDA’s policy on “natural” is correct, it should not be able to (but does) highlight the “natural flavorings” in its partially natural product “Sweet Mate” zero-calorie sweetener, although not the subject of the instant challenge, NAD noted that the advertising for the challenger’s product is readily distinguishable. Nowhere on the challenger’s product packaging is Sweet Mate sweetener advertised as “natural”. Rather, the front panel simply states “Zero calorie Sweet Mate Sweetener” with a banner across the corner reading, “Sucralose Blend at a Very Sweet Price.” Further, the ingredients panel lists (in order): “Dextrose with Maltodextrin, Sucralose, Acesulfame Potassium, Natural Flavors.” Nowhere is the product, as a whole, or with respect to any sweetening agent, is the word “natural” used. 43 Report #3470, NAD/CARU Case Reports (June 1998).

HEARTLAND SWEETENERS, LLC. Ideal® Page: 18

only present in a minimal amount by weight, the presence of sucralose, a synthetic sweetener, in the advertiser’s product was likely to be material to the product’s target audience and that it would be reasonable for such consumers to expect that the sweetening agents in this product are not artificial, let alone that Ideal’s primary sweetening agent, unlike the tertiary component (emulsifier) in the Tom’s of Maine mouthwash, are not synthetic. While it is true that, in the Tom’s case, NAD concluded that the advertiser could still promote its product as “natural” despite the presence of this emulsifier, it cannot be stressed enough that underlying this determination was the fact that the primary ingredients accounting for that product’s performance were natural, and that unlike its competitors, it accomplished its purpose (fresh breath) without the use of the commonly used non-natural ingredients. It was for this reason that NAD permitted the advertiser to call itself “natural” but still cautioned the advertiser to avoid claiming, directly or by implication, that its product was more natural than was actually the case. Conclusion: Given that Ideal contains sucralose, an undisputedly artificial sweetener, NAD recommended that the advertiser discontinue its “natural”, “natural sweetener”, “more than 99% natural” claims as well as its claim that Ideal is “different from the other no calorie sweeteners on the market [because it is] More than 99% natural” and avoid conveying the implied message that its product is different from competing sugar substitute products because it is natural or more natural.44 However, nothing in this decision precludes the advertiser from extolling the many positive attributes of xylitol (health, dental, benefits, better free-flow in cooking, etc.) or that it has a unique or preferred taste profile (to the extent that such claims are supported) thereby distinguishing its product from other sugar substitutes. Advertiser’s Statement: Heartland Sweeteners claims that Ideal No Calorie Sweetener is “more than 99% natural.” The claim is literally true. Ideal contains approximately 99.5% natural ingredients by weight. The most important ingredient (the vast majority of the product by weight) is the natural sweetener Xylitol, which is as sweet as sugar and is key to the product’s ability to simulate the unique appearance, flavor and feel of sugar. Although a tiny amount of sucralose, an artificial sweetener, is added for sweetness, this fact is clearly disclosed on the ingredient panel and is highlighted by the wording of the claim itself. In light of these undisputed facts, Heartland strenuously disagrees with NAD’s factually unsupported finding that reasonable consumers could be misled that Ideal is actually “100% natural,” or that 100% of Ideal’s sweetening ingredients are all natural. NAD has apparently also concluded that Heartland’s “99% natural” claim, even though phrased in a monadic way, falsely implies that Ideal is “more natural” than competing non-sugar 44

NAD’s earlier notation of the leaf-like logo is not meant to suggest that the advertiser discontinue or modify this logo. Rather, it is this artwork coupled with the express language of “natural” or “more than 99% natural” that adds to the overall net impression that all of the sweetening agents in the product are natural. Absent the “natural” or “more than 99% natural” claims, NAD did not find this logo to be, in itself, problematic.

HEARTLAND SWEETENERS, LLC. Ideal® Page: 19

sweeteners on the market. NAD’s decision protects the interests of incumbent, non-sugar sweetener manufacturers, some of whom have launched a new “natural” sweetening product made from rebaudioside A (derived from Stevia). Thus, under NAD’s ruling, while producers of reb-A products may advertise that their products are “natural,” Heartland may henceforth not claim that its Ideal product is any more natural than saccharine. This decision could harm the public interest by depriving consumers of truthful, relevant, and helpful information on the foods they purchase. Because the NAD’s ruling is factually unsupported and may have dramatic and unintended adverse consequences for the market for non-sugar sweeteners, Heartland intends to appeal NAD’s findings to the NARB. (#5125 MSZ, closed 12/14/2009)

© 2009. Council of Better Business Bureaus, Inc.

Suggest Documents