Justice condemns Heinz in fight for the tastiest mayonnaise – 04/24/2023 – Market

The 2nd Reserved Chamber of Business Law of the TJ-SP (Court of Justice of São Paulo) condemned the company Kraft Heinz to indemnify Unilever, producer of Hellmann’s mayonnaise, for unfair comparative advertising. The multinational will have to pay BRL 50,000 to the competitor.

The decision, dated April 4 of this year, confirms the position of the 1st Corporate Court and Arbitration Conflicts of the Capital, which had already ordered the company to remove the material considered as unfair advertising from points of sale and packaging of Heinz mayonnaise under penalty of fine of BRL 250,000 per day for non-compliance.

In a note, Kraft said it was “aware of the decision” and is evaluating the case to adopt “the appropriate legal measures”.

Unilever, on the other hand, informed that it defends fair competition and “clear, truthful and well-founded advertising, which provides the consumer with correct information for conscious decision-making, without being misled”.

“The process in question is still pending in court and, for now, there is no additional information,” he said.

The fight between the two companies began after an event in 2018 promoted by Apas (Associação Paulista de Supermercados), known as Apas Show, when Heinz started to make a comparison with Hellmann’s mayonnaise, stating that it was a product “creamier, fresher and tastiest” on their packaging during the launch of their product.

In addition, the company went on to state that 80% of consumers intended to replace their current mayonnaise, that “consumer reaction couldn’t have been better” and that there was “on par with the market leader”, “while our competitor drops month after month”.

Judicial expert’s report understood that the information conveyed by Kraft Heinz was untrue. In his report, the judge Maurício Pessoa mentioned an expert report called by him “taxative” with the conclusion that the information conveyed by the company does not match data extracted from a comparative chart made at the time by Nielsen, which would demonstrate distortion and lack of veracity. .

According to the information contained in the process, the advertising that was considered unfair was made not only on labels and packaging, but also on materials at points of sale. The competitor reported that the mayonnaise was “fresh” and “creamy”, produced “100% cold”, information that should no longer be broadcast.

“That is enough, in light of the expert evidence, to prove the practice of misleading comparative advertising perpetrated by the appellant, by conveying untrue information and without support from objective sources, causing confusion to the consumer, in addition to diverting customers to the detriment of other competitors , like the appellee”, he said.

The rapporteur also highlighted in his vote that comparative advertising is not prohibited, as long as it is not carried out with abuse of rights, as was done in the case, as it can lead the consumer to error.

Judicial battle between the brands reached the STJ

The legal fight between Kraft and Unilever is old and has already reached the STJ (Superior Court of Justice), an instance in which the first won. The case in question deals with ketchup.

In early March, the Fourth Panel rejected Unilever’s appeal and considered the expressions “Heinz, the ketchup consumed in the world” and “Heinz, best at everything it does” in its advertising actions.

In the res judicata, Heinz went to court after the Conar (National Advertising Self-Regulation Council), triggered by Unilever, determined the suspension of the use of expressions.

In his report, Minister Marco Buzzi understood that it would be unreasonable to prohibit the manufacturer or service provider from saying that he is the best at what he does, which would not constitute a derogatory message against competing brands.

The minister also stated that Unilever adopts contradictory behavior, using expressions to highlight its product as the best, but, in court, accusing its competitor. According to him, the company has used the expression “Hellmann’s, the real mayonnaise” for many years and, in the case of its ketchup line, it has also stated that its product was the real thing or “the real good stuff”.

^{(Collaborated Fernanda Brigatti)}