The National Advertising Division of the Council of Better Business Bureaus has determined that Wendy’s International Inc., provided sufficient evidence to support express and product description claims made in the context of the company’s “Always Fresh, Never Frozen” advertising campaign.

NAD, the advertising industry’s self-regulatory forum, examined print, television, and Internet advertisements, following a challenge by Burger King Corporation, a manufacturer of competing products.

Claims at issue in broadcast advertising included:

•“If hamburgers were meant to be frozen, wouldn’t cows come from Antarctica? Wendy’s hamburgers are made with fresh never frozen beef. Who else can say that? It’s better than fast food. It’s Wendy’s.”

•“So, Dad, you know Wendy’s is dedicated to using fresh beef that’s never been frozen … do you realize what kind of commitment that takes? I mean, to vow to something and then to continue to deliver on that promise … a promise is only good if it is kept. Wendy’s hot and juicy hamburgers are made with fresh, never frozen beef, that’s a promise. It’s way better than fast food, it’s Wendy’s.”

Print and Internet advertising claims included:

•“Wendy’s. Always fresh, never frozen!”

•“Wendy’s. Always fresh, never frozen! That’s right.” (accompanied by a $1 off coupon and picture of burger, frie,s and beverage)

At the outset, Wendy’s noted that it had removed from the marketplace local advertising that was “overly broad” and may have suggested that the “Always fresh, never frozen” campaign referred to all products sold by Wendy’s, rather than hamburger patties. Further, Wendy’s noted that because beef patties in Alaska and Hawaii are frozen, the company would take steps to assure that a disclaimer stating “Fresh beef available in 48 contiguous US and CN” would appear on all future Wendy’s advertisements containing the “Wendy’s, Always Fresh, Never Frozen” slogan.

NAD noted that it was satisfied with the advertiser’s assurance that it had removed the local advertising at issue from the marketplace and would not issue future fresh-beef advertisements without the disclaimer, actions NAD deemed both necessary and appropriate in order to avoid the potential for any consumer confusion.
The remaining question before NAD was whether the evidence in the record provided a reasonable basis for the advertiser’s “fresh, never frozen” claim.

NAD has consistently held that advertisers should be free to tout product innovations that provide meaningful consumer benefits. Because some consumers may prefer to eat hamburgers that are made from fresh beef rather than from beef that has been frozen, the advertiser has the right to tout that product characteristic.

The advertiser provided NAD with an affidavit from Bob McQuattie, vice president of product and technical services quality assurances, which described in detail the manufacturing and packaging process, which the advertiser maintained, results in the creation of Wendy’s fresh, not frozen, hamburger patties.

The McQuattie affidavit provided an in-depth description of Wendy’s entire beef manufacturing process, as well as a detailed account of the temperature control and auditing system put in place to monitor quality control. Importantly, the affidavit also supplied NAD with a thorough explanation of how the process was specifically designed to process only fresh beef and why there is no danger of the beef temperature falling below the freezing temperature.

Following its review of the evidence in the record, including the affidavit, NAD found that the advertiser provided a reasonable basis to support the claim, “Wendy’s, Always Fresh, Never Frozen,” with respect to its hamburger patties.

In its advertiser’s statement, Wendy’s stated that it “appreciates the NAD’s efforts in this matter and continues to be a firm supporter of the NAD self-regulatory process.”

NAD’s inquiry was conducted under NAD/CARU/NARB Procedures for the Voluntary Self-Regulation of National Advertising. Details of the initial inquiry, NAD’s decision, and the advertiser’s response will be included in the next NAD/CARU Case Report.

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