The National Advertising Review Board (NARB) upheld the National Advertising Division’s (NAD) decision that Goya Foods, Inc.’s claim that its Excelsior brand pasta was “la pasta favorita de Puerto Rico” was an unsupported objective preference claim. The claim (which translates to “The Favorite Pasta of Puerto Rico” or “Puerto Rico’s Favorite Pasta”) was challenged by Riviana Foods, Inc. Riviana sells the Ronzoni pasta brand in Puerto Rico and is the leading pasta brand there, with approximately 30% market share. It alleged that the “favorite” claim communicates an objective message—that Excelsior pastas are preferred over all other available brands. According to Riviana, Goya could potentially support this claim with either market share data or consumer survey evidence. As Riviana is the market leader in Puerto Rico and Goya offered no survey evidence, Riviana argued that the “favorite” claim was unsupported.
Goya argued that its “favorite” claim was puffery because superlatives such as “favorite” are subjective and immeasurable. It also argued that there is a difference between the English and Spanish meanings of the word “favorite.” While the English definition of “favorite” is “a person or thing that is preferred to all others of the same kind or is especially well liked,” the Spanish definition—“esteemed and appreciated with preference”—does not imply superiority. The NARB and NAD both concluded, however, that Goya failed to show that Puerto Rican consumers would interpret “favorite” differently than its standard English meaning, which does imply superiority.
The NARB panel agreed with the NAD’s decision that the “favorite” claim was not puffery, but rather an objective preference claim requiring substantiation. The NARB noted that, while there may be different meanings of the word “favorite,” the word is not so ambiguous it could not be the subject of a consumer survey. Had Goya conducted such a survey and received supporting results, it could have relied on those results to substantiate its claim. The NARB also noted that it was not bound by prior Eighth Circuit precedent—Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (8th Cir. 2004) (finding “America’s Favorite Pasta” was puffery)—because puffery decisions are incredibly fact-specific and must be decided in context. In this case, some of Goya’s advertising with the “favorite” claim also highlighted other product attributes, such as quality, variety, and taste, making the preference message “particularly pronounced.” Ultimately, because Goya could not support its preference claim with market share data and did not have a supporting survey, NARB recommended that the advertising be withdrawn.
The case is Riviana Foods, Inc. v Goya Foods, Inc., NAD Case No. 6266 (April 1, 2019), NARB Panel #255 (September 30, 2019).
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Finnegan is deeply saddened by the death of our colleague Donald R. Dunner, who passed away on October 16, 2019, after a life of dedication and inspiration to many in IP law. Don was in a category all his own with his talent and distinct knowledge of IP law. His direct approach and enthusiasm for work and life touched everyone who worked with him, and we will miss him dearly.