NAD, the advertising industry’s self-regulatory forum, requested substantiation for certain claims made in broadcast advertising, following a challenge by the Subway Franchisee Advertising Fund Trust. Claims at issue included:
• “Domino’s oven baked sandwiches beat the taste of Subway’s 2 to 1.”
• “The scrumptious taste of Domino’s oven baked sandwiches beat Subway’s in a national taste test 2 to 1.”
• “Domino’s oven baked sandwiches beat Subway’s in a national taste test 2 to 1.”
In the challenged commercials, the announcer states, “Domino’s Oven Baked Sandwiches beat Subway’s in a national taste test 2 to 1,” a statement repeated at the end of the commercial, along with the prominent visual “BEAT SUBWAY 2 to 1 IN A NATIONAL TASTE TEST.”
A three-line super appeared, as well, which stated: “Taste preference based on a national taste test conducted by an independent research company of Domino’s Oven Baked Sandwich varieties – Philly Cheese Steak, Chicken Bacon Ranch and Italian versus comparable Subway Fresh Toasted Sandwich varieties Steak & Cheese, Chicken & Bacon Ranch and Italian BMT.”
Following its review of the advertising, NAD determined that, on balance, consumers could reasonably interpret the claims as product line claims, meaning that Domino’s, as a whole, beat the challenger’s products (both toasted and untoasted subs) in a national taste test, a broader claim than the one supported by the evidence.
NAD recommended that Domino’s modify such comparisons to qualify, up front, that the object of comparison is the advertiser’s “Oven Baked” sandwiches and the challenger’s “Fresh Toasted” sandwiches, rather than Subway’s entire sandwich line.
NAD noted that the challenger’s menu of Fresh Toasted sandwiches changed significantly during the course of the NAD proceeding. NAD concluded that while the advertiser possessed a reasonable basis for its taste preference claims at the time the challenge was filed, that evidence was insufficient to support an “Oven-Baked” versus “Fresh-Toasted” claim given the changes in the challenger’s menu. NAD recommended that the challenged commercials be discontinued or modified to make a more limited taste preference claim, expressly limited to the specific sandwiches tested.
Further, NAD determined that the disclosure explaining the basis of the taste-test was insufficient to adequately qualify the challenged commercials’ overarching message of taste comparison between Domino’s and “Subway’s.”
Domino’s, in its advertiser’s statement, said it would “take NAD’s recommendations into account for its future advertising, including modifications in light of Subway’s changes to its product line. Domino’s appreciates the opportunity to participate in the self-regulatory process and NAD’s careful consideration of the issues in this matter.”
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