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July 15th, 2004
Thinking About Fried Chicken?
The Federal Trade Commission ("FTC") has repeatedly warned that it intends to aggressively prosecute advertisers who make deceptive health and weight loss claims. As part of these efforts, the FTC recently announced that it entered into a settlement agreement with KFC Corporation, the owner of the KFC restaurant chain, over allegations that KFC made false claims in its television commercials about the nutritional value and health benefits of its fried chicken.
In one KFC commercial, a wife comes home with a bucket of chicken and says to her husband, "Remember how we talked about eating better. Well, it starts today." The announcer says, "Two Original Recipe chicken breasts have less fat than a BK Whopper." In another commercial, one man says to another, "Man, you look fantastic. What the heck you been doing?" The other guy, holding a piece of fried chicken, replies, "Eatin’ chicken." The announcer says, "One Original Recipe chicken breast has just eleven grams of carbs and packs forty grams of protein. So if you’re watching carbs and going high protein, go KFC." The spots also included some supers about these claims, and then each ends with a special offer promoting a bucket of chicken.
The FTC did not allege that the express claims that KFC made in these commercials about the amount of fat, carbs, or protein in its fried chicken were false. Instead, the FTC went after KFC for the "implied" claims that it made. The FTC alleged that, in the first commercial, KFC falsely suggested that eating two Original Recipe fried chicken breasts is better for a consumer’s health than eating a Burger King Whopper. The FTC said that it isn’t, since the chicken breasts have more trans fat, cholesterol, sodium, and calories. The FTC alleged that the second commercial falsely implied that eating KFC’s fried chicken is compatible with low carb weight loss programs, which the FTC also said is not true.
Advertisers are generally responsible for ensuring that even the implied claims that they make are not misleading. This means that even if you have support for the specific statements that you make, you still have to make sure that consumers do not take away other false claims, based on their interpretations of the advertisement as a whole. It doesn’t really matter that you didn’t intend to make a false claim. What is important is how consumers interpret the advertising.
Although KFC was not required to pay monetary damages as part of the settlement, the agreement does govern its advertising practices for the next twenty years. (The settlement is subject to public comment, after which the FTC will decide whether to make it final.) Commenting on the settlement, FTC Chairman Timothy J. Muris said, "Today’s action signals food advertisers that the FTC will not tolerate misleading advertisements to consumers who are trying to eat healthier and watch their weight." The FTC has been so committed to pursuing this agenda that, since the 1990s, the FTC has brought about one hundred cases challenging misleading weight loss claims.
It is likely that not only will the FTC continue these efforts, but it will pursue them even more aggressively. Arguing that the FTC should seek monetary relief in these types of cases in the future, FTC Commissioner Pamela Jones Harbour said that "where a company appears to have exploited a national health crisis, an even stronger response from the Commission is warranted." So, unless you’ve got lots of fat in your budget that you’re hoping to have trimmed by the FTC, before promoting any product, make sure that you can back up both your express claims and your implied claims. If you take that extra step, you’ll avoid a whole bucket of trouble.
This article first appeared in the July 2004 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
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