Voortman Bakery’s Windmill Cookies
July 16th, 2018
That’s at least one explanation for why, when you open the box, the cookies look like this, with far fewer visible almond pieces than the cookies represented on the package, and none of the whole almond slices.
TINA.org reader Paul T. submitted the photo above with a note documenting his frustration. If you’ve ever experienced fast food and have the memory of ordering something off the drive-through menu that looked mouthwatering and then were disappointed with the indeterminate puck of gristle you pulled out of the bag, perhaps you can empathize with Paul. Here’s the thing: Such an exaggeration in the advertising of food is actually legal when, and this is the important part, a reasonable consumer knows that the food won’t look exactly like the item pictured in the photo. This is puffery, or as we like to call it, a marketer’s right to lie.
As a recent court ruling involving photos of premium cuts of meat on bags of Iams dog food demonstrates, the burden is on the challenger of the advertising to prove that a reasonable consumer would be misled by the images. (In the Iams case, the plaintiff, a competitor named Wysong Corp., alleged that the dog food is actually made from meat trimmings or leftovers.) If the challenger can’t show deception (as was the case here), it’s puffery.
While the court in the Iams case found that most people understand that dog food is not made from filet mignon, and thus affirmed a lower court’s dismissal of false advertising claims, cookies for human consumption seems different. So we ask you: Based on the product’s packaging, would you expect more almonds?
Find more of our coverage on the advertising of ingredients here.