You’ve likely often heard the advice “don’t compare apples to oranges.” Well signs are beginning to emerge that at least when it comes to serving sizes that’s not always the case and that a more practical, real world standard may be taking hold.
NAD recently rejected a challenge by Hansen Beverages, makers of Monster, to an ad for 5 Hour Energy featuring heaping spoonfuls of white sugar being poured into a 16 ounce Monster Energy can while a voiceover touted the effects of 5 Hour Energy with its “zero sugar and only 4 calories.” Hansen argued that the ad constituted an “apples-to-oranges” comparison since the 16 ounce Monster Energy can contained two whole servings, while the 5 Hour Energy product was a mere single serving “shot” of liquid.
NAD looked at two questions: 1. Whether 5 Hour Energy could make the comparison at all in light of the obvious differences in serving sizes; and 2. If the comparison is consumer relevant, was the disclosure used by 5 Hour Energy about the serving sizes adequate? NAD began by noting that 16 ounce cans are the standard size in the industry and that consumers typically consume an entire can in one sitting. Moreover, NAD noted that it’s unlikely Monster Energy is meant to be drank over several sittings given that it is served as a carbonated beverage in a can; not particularly portable or good after sitting for long periods of time. As a result, NAD concluded that the comparison between the two products was consumer relevant given that 5 Hour Energy was intended for the same type of use. Moreover, NAD cited to the FDA Nutrition Labeling; Guidance for Industry, finding that one can is typically considered a single serving. NAD also pointed out that FDA has been encouraging manufacturers to be flexible with current regulations concerning serving sizes and consider representing a “single serving” as one that can be consumed at a single sitting.
NAD noted, however, that while it has “long held that, although advertisers are not required to limit their comparative claims to a competitor’s ‘most similar’ product, when making an apples-to-oranges comparison, the advertiser must clearly disclose any material differences between the products.” 5 Hour Energy had indeed included a tiny statement noting that the comparison was to a 16 ounce can of Monster and that each 16 ounce can contained two servings. After the initiation of the challenge by Monster, 5 Hour Energy agreed to increase the size of the disclaimer and leave it on the screen for a longer period of time. NAD was satisfied with this resolution.
