Not the NARB’s Favorite: Pasta Claims Should Be Discontinued

Advertising Law

The National Advertising Review Board (NARB) agreed with the National Advertising Division (NAD) that Goya Foods Inc. failed to support its objective preference claim that its Excelsior brand pasta is “La Pasta favorita de Puerto Rico” and that the claim should be discontinued.  

Competitor Riviana Foods Inc. challenged the claim, which appeared in Spanish-language advertising on product packaging, television commercials and the internet. The claim—translated as “The favorite pasta of Puerto Rico”—was used both by itself as a slogan or tagline and as part of a more extensive presentation.

Riviana argued that the claim was an objective message that could be backed one of two ways: either with market share data or by a consumer survey. Since Riviana is the leading brand in Puerto Rico by market share and Goya offered no survey evidence, the claim was unsupported, Riviana told the self-regulatory body.

Goya countered that the claim constituted puffery. Superlatives such as “favorite” are “subjective and immeasurable,” the advertiser argued, and do not need substantiation. For support, Goya pointed to a Spanish dictionary which defined the term “favorite” as “esteemed and appreciated with preference.”

Earlier this year, the NAD disagreed and recommended that the claim be discontinued. Goya appealed, and the NARB sided with the challenger.

“The panel agreed with NAD and concludes that the Favorite Claim is not puffery, but rather an objective preference claim that requires substantiation.” As for the dictionary definition highlighted by Goya, the self-regulatory body found it consistent with the English definitions cited by Riviana, which all showed that “favorite” “conveys a message of preference. While there may be other possible meanings of the word ‘favorite,’ in the context of the advertising at issue here, the preference message is particularly pronounced.”

Nor did the NARB agree with the advertiser that the term “favorite” was too ambiguous to be the subject of a survey.

“While different consumers may have different reasons for viewing a pasta as their favorite, they can certainly understand what they are being asked if they are surveyed on that issue,” the panel said. The NAD did not require that a survey define the term “favorite,” the NARB clarified, but rather that a survey was one option available to the advertiser to try to support the claim.

Finally, the panel rejected Goya’s reliance on a 2004 opinion from the U.S. Court of Appeals, Eighth Circuit, in American Italian Pasta Co. v. New World Pasta Co., where the court held that the slogan “America’s Favorite Pasta” was puffery.

“The panel agrees with the challenger’s position that NAD and NARB, in exercising their industry self-regulation responsibilities, are not bound by the decision of the Eighth Circuit,” the NARB wrote. “In addition, the panel notes that puffery decisions are very fact-specific and must be decided in context.”

To read the NARB’s press release about the decision, click here.

Why it matters: Concluding that the “favorite” claim did not constitute puffery and was an objective preference claim that required substantiation, the NARB noted that puffery decisions are “very fact-specific” and that the panel—as well as the NAD—are not bound by court decisions when exercising their industry self-regulatory responsibilities. However, the panel added that it didn’t view its decision as necessarily inconsistent with the Eighth Circuit opinion and that terms such as “best” or “first” may constitute puffery in other contexts.