“Tasty as Ham, Light as Turkey Breast”: Misleading or Not?

“Is it ham or turkey breast?”, asks a choir of puzzled voices in Seara’s commercial for its new product. Fátima Bernardes - former anchor of the Brazilian most watched nightly newscast and current host of a morning talk show - answers: it is Seara’s “Levíssimo” (“extremely light”, in Portuguese), “THE ONLY ONE TASTY AS HAM AND LIGHT AS TURKEY BREAST”. The video goes on singing about the qualities of the product while additional information is displayed written in bold white letters over juicy images of sandwiches, wraps, and pizzas - “100% pork loin”, “38% less sodium”, “30% less fat”.

BRF, Seara’s largest competitor, was not satisfied with such a light explanation and filed a complaint with the National Council of Advertising Self-Regulation (“CONAR”), claiming that the video and the product’s label were misleading - for making promises regarding nutritional and organoleptic benefits that are not clearly demonstrated – and an act of unfair comparative advertising (Representation No. 106/21).

Thus, BRF requested to CONAR the cessation of the ads and of the use of the label containing the claim "SEARA LEVÍSSIMO – THE ONLY ONE TASTY AS HAM AND LIGHT AS TURKEY BREAST", as well as any advertisement by Seara comparing Levíssimo to turkey meat. The request was based on three alleged violations: (i) the use of the adjective LEVÍSSIMO as a brand for the SEARA LEVÍSSIMO without a clear criterion (or meaning); (ii) the use of the expression “THE ONLY ONE” without objective organoleptic proof; and (iii) the comparison between a product composed of 100% pork loin with a product of another protein base (turkey), appealing to subjective and unfounded comparisons, since Levíssimo’s nutrition facts label compares the product solely to ham.

In its defense, Seara informed that the claim " SEARA LEVÍSSIMO – THE ONLY ONE TASTY AS HAM AND LIGHT AS TURKEY BREAST " was supported by research made by  SenseNova, a survey company , in which consumers accredited flavor notes that legitimize the understanding that Levíssimo is “tasty as ham” taking into account the main hams available on the market. The advertiser also attached technical information provided by another company, Equilibrium Latam, demonstrating to have reached "the lightness of a turkey breast" with regard to energy value, sodium, carbs, and fats, that are equivalent or even better to that of the so-called breast of smoked turkey. According to the defense, this combination is clearly informed on the ads and on the label, which are also transparent regarding its composition of 100% pork loin. As for the expression "THE ONLY ONE", Seara points out that Levíssimo, "at least to date", is the only cold product in the market composed entirely of cooked pork loin. Moreover, the claims "30% less Fat" and "38% less Sodium" are presented with an asterisk and are based on nutritional comparison with other ham products available in the market. Finally, Seara demonstrated that the brand “Levíssimo” is directly linked to proven consumer perceptions and objective data contained in its nutrition facts label, given that it is less caloric than similar products, with low carbs and fat because it is made of loin and, consequently, lighter.

CONAR rejected the plaintiff’s requests after agreeing with Seara’s arguments that Levíssimo is a brand-new product and that the claims presented on the video and label are based on data.

BRF appealed, pointing out that the main concern was not whether Levíssimo was a new product or not, but the confusion its label and advertising created among consumers by comparing it with ham and turkey breast, leaving doubts on the product’s real nature – which was supported by internet posts in which customers ask if the product is a new ham or a new turkey breast. In addition to that, BRF criticized SEARA for linking its product on GoogleAds to the keywords "ham" and "turkey breast" and not to “pork loin”. According to the plaintiff, this confusion could even cause allergic or religious damage to some consumers in case they eat Levíssimo believing it is poultry. Therefore, BRF stated that Seara’s advertising was misleading, which is an infringement of the CONAR Code and the Brazilian Consumer Defense Code (“CDC”, Federal Law No. 8,078/90).

Furthermore, BRF argued that Seara should not use the expression “THE ONLY ONE” as there are other similar products in the market composed entirely of pork loin. With respect to the product’s lightness, BRF highlighted that it was compared only with ham products, which is not enough to say that pork loin is as light as turkey breast.

In its reply, Seara repeated the arguments presented in its defense, emphasizing that it is a legitimate advertising, that the content is true and proven by research, and that its aim is solely to praise the characteristics of a new product.

CONAR’s Court of Appeal sustained the first decision regarding the product’s lightness. Nevertheless, after confirming the existence of other similar products in market composed of 100% pork loin, it demanded the change of the pieces by removing the expression “THE ONLY ONE”.

As a consequence, Seara decided to appeal, evoking the understanding of the six counselors of the first instance, who voted unanimously for the rejection of the plaintiff’s requests, and the four counselors of the Court of Appeal, who voted against the rapporteur's understanding, considering legitimate the use of the expression “THE ONLY ONE”.

Seara claimed that the product’s uniqueness is not that it is composed of 100% pork loin, but its taste and lightness, and that the expression is only used with the slogan “TASTY AS HAM AND LIGHT AS TURKEY BREAST”. The company also informed that the product was awarded in the Food Ingredients South America Innovation Awards 2021, an important innovation award in South America, recognizing it as the second most innovative product in the entire market.

In its reply, BRF repeated the arguments presented in its appeal and requested once again the alteration of the ad and label in order to eliminate any chance of causing confusion among consumers regarding the product’s nature.

CONAR, in its final decision, acknowledged that Levíssimo is a new product and that the aim of the Seara’s campaign is to create a new market segment for “levíssimos”. CONAR noted that this strategy is very similar to what Perdigão – now owned by BRF - did 40 years ago when it launched Chester, which was officially revealed to be a type of chicken only in December of 2020. As the case’s rapporteur stated: it is a huge chicken, created after 12 years of artificial selection, but still a chicken. Nonetheless, from the marketing communication perspective, Chester, as a brand, means a bird with much more breast and thigh than common chickens and with a juicier meat than turkey. In other words, Chester is neither one nor the other, but a completely new product, belonging to a third category, the Chester category.

In the same way, Levíssimo is neither ham nor turkey breast, it is simply Levíssimo.

Accordingly, on February 24, 2022, CONAR’s counsellors voted to revert the Court of Appeal’s decision, allowing Seara to claim that its product is not only extremely light, but also unique.