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By Fernanda Magalhães

Brazilian Superior Court recognizes the legitimacy of Heinz’s use of exaggerated advertising

The Brazilian Superior Court (“STJ”) has recently ruled on puffery in advertising in a case between Unilever (owner of the Hellmann’s brand) and Heinz involving the use of the advertising claims “Heinz, the world’s most consumed ketchup” and ‘Heinz, better in everything it does‘.

In its decision, the Court upheld lower court decisions and asserted that the claim ‘Heinz, better in everything it does’ cannot be objectively measured by consumers as it represents a subjective opinion from manufacture about its products. As such, use of the expression constitutes puffery, a known advertising technique of exaggerating the attributes of products or services used to attract consumer´s attention. The Court highlighted that it should be reasonable for consumers to expect that manufactures will boast about their own goods or services and that prohibiting the use of such advertising claims inadequately disqualifies the judgement of average consumers.

Regarding the claim ““Heinz, the world’s most consumed ketchup”, the Court also upheld lower courts´ decisions finding that Heinz had provided sufficient evidence to demonstrate the truthfulness of the claim as its ketchup was in fact the best-selling ketchup at the time of the ad campaign. Further, the Court maintained appeal court´s decision finding that Heinz should not be required to apply disclaimers with information about the surveys which substantiated the advertising expression as the claim was in fact honest.

The battle between the companies was first brought before the Brazilian Advertising Self-Regulation Council (“CONAR”) which had granted an injunction to Unilever against Heinz’ for use of the claims. As a result, Heinz filed a declaratory judgment before the São Paulo State Court to challenge CONAR’s decision and obtain validation for its use of the claims.

The lower court decided in favor of Heinz finding that the claims were not misleading but determined the application of disclaimers near the claim “Heinz, the world’s most consumed ketchup” to inform consumers of the basis of assertion. The State Court of Appeals upheld the decision but rejected the disclaimer requirement as it considered that sufficient evidence has been provided by Heinz to demonstrate the truthfulness of the claim.

Please contact our Marketing & Entertainment Law team if you have questions or would like to learn more about the matter.

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