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Wildeklawers Sweet Onions / Dry Bean Producers Organisation / 4524

Ruling of the : Advertising Industry Tribunal
In the matter between:
The Dry Bean Producers Organisation Complainant(s)/Appellant(s)
Wildeklawers Farm Respondent

04 Apr 2006

At the Advertising Industry Tribunal (“the Tribunal”) meeting held on 8 March 2006, the Tribunal considered a complaint by the Dry Bean Producers’ Organisation against a television commercial for Wildeklawer’s Sweet Onions product.

THE COMPLAINT
The complaint concerns a television commercial which depicts a rugby player sitting alone in a change room with his coach. The rest of the team is standing outside the door refusing to enter the change room. The lone player has a can of beans in his hand which he is eating. The coach asks the player, “Why, Roy, why? With sweet onions there are no tears, no burn and definitely no stink. The beans.” The player passes the can to the coach and the pay-off line is, “Wildeklawer Sweet Onions. Stinky is out. Sweet is in”.

The complainant submitted that the commercial implies that beans give you gas while sweet onions do not. By doing so, it complained that the commercial breaks down all the hard work that the dry bean industry had invested in promoting the health benefits of beans. The commercial fails to recognise that gas formation due to the consumption of beans is merely a temporary condition which occurs while a person’s body gets used to the added fibre and prebiotics contained in beans.

THE RELEVANT CLAUSES OF THE CODE
The following clauses of the Code are relevant:

• Clause 4.2.1 of Section II – Misleading claims

• Clause 6 of Section II - Disparagement

• Clause 7 of Section II – Comparative Advertising

THE RESPONDENT’S SUBMISSIONS
The respondent submitted that the commercial does not contravene the ASA Code. The commercial does not purport to make any specific claims about the merits of sweet onions versus dry beans. It merely uses beans as a parody / hypothetical situation to encourage people to eat onions. The respondent further submitted that it did not even consider beans to be a competitor product to onions. For these reasons it argued that it was not making any misleading or competitive claims, and that the commercial is merely puffery and hyperbole.

It also submitted that it was a common perception that beans give you gas and in fact this is confirmed by the complaint itself.

THE TRIBUNAL RULING
CLAUSE 4.2.1 - MISLEADING CLAIMS

Clause 4.2.1 of Section II of the Code states as follows:

“Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.”

There is no evidence before the Tribunal to suggest that the commercial is in any way misleading. We accordingly cannot find that there has been a breach of Clause 4.2.1

CLAUSE 6 OF SECTION 11 - DISPARAGEMENT

Clause 6.1 of Section II of the Code provides that:

“ Advertisements should not attack, discredit or disparage other products, services, advertisers, or advertisements directly or indirectly.”

Clause 6.2 goes on to provide that:

“Comparisons highlighting a weakness in the industry or product will not necessarily be regarded as disparaging when the information is factual and in the public interest.”

Although the Tribunal is of the view that the commercial may be viewed as disparaging in some people’s eyes, the complainant itself admits that beans do at least temporarily cause gas. There is accordingly no dispute that beans cause gas and that the public is widely aware of this. The commerical plays on what may be considered to be a factually accurate weakness in beans as a food product. We are accordingly of the view that in the light of Clause 6.2 of the Code the commercial does not constitute a breach of Clause 6.1.

CLAUSE 7 OF SECTION II - COMPARATIVE ADVERTISING

The Majority Decision

The majority of the Tribunal is of the view that the commercial does not breach Clause 7 of Section II of the Code. The majority is of the view that, in so far as it can be said that the commercial constitutes comparative advertising, the respondent did not intend to disparage beans as a product. The commercial constitutes a harmless parody. It plays on an objectively determinable factual reality which cannot be denied, in an over the top manner. The intention was not to discourage people from eating beans but merely to encourage people to eat onions.

The Minority View

A minority of the Tribunal are of the view that the commercial breaches Clause 7.4 of Section II of the Code because the emphasis and focus of the commercial is on the apparent weakness of beans as a food product. The commercial only by passing reference, extols the merits of sweet onions and then only in comparison to the disadvantages of beans. The merits of onions are given little to no independent consideration. Effectively, the only basis upon which onions are promoted is by virtue of a comparison which focuses on the demerits of beans in a manner which the minority considers breaches Clause 7.4.

The majority of the Tribunal accordingly finds that there has been no breach of the Code and the complaint is dismissed.

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