Burger King Loses Marketing Dispute With Wendy’s

The National Advertising Division of the Council of Better Business Bureaus has settled a dispute involving Burger King’s allegations that fast feeder rival Wendy’s made unsubstantiated claims in its “Always fresh, never frozen” campaign.

NAD this week ruled against Burger King’s contention that Wendy’s could not provide sufficient evidence of its use of fresh beef patties in U.S. chains, according to a statement from NAD.

NAD also deemed Wendy’s use of the word “always”–which suggests consumers get a fresh beef patty every time–was appropriate in the context of its advertising. Burger King claimed that Wendy’s did not have enough documentation to support both claims.

The ads at issue began airing in January 2007. Print and Internet boasted the tagline, “Wendy’s. Always fresh, never frozen!” TV spots focused on the quality of Wendy’s fresh-ground beef. “If hamburgers were meant to be frozen, wouldn’t cows come from Antarctica? Wendy’s hamburgers are made with fresh, never frozen beef. Who else can say that? It’s better than fast food. It’s Wendy’s,” one spot concludes.

Another commercial in the dispute starts with a child telling his father, “So, Dad, you know Wendy’s is dedicated to using fresh beef that’s never been frozen . . . do you realize what kind of commitment that takes? I mean, to vow to something and then to continue to deliver on that promise . . . a promise is only good if it is kept. Wendy’s hot and juicy hamburgers are made with fresh, never frozen beef, that’s a promise.”

According to Wendy’s, ads airing in Alaska and Hawaii, where Wendy’s locations do serve patties made from frozen beef, were pulled off the air one month after they launched and before Burger King’s initial filing. Wendy’s said it also found three instances of print and TV ads that were “mistakenly overbroad” in its use of the “always fresh, always frozen” tagline, but argued that these were produced by local franchises, which fell outside of the NAD’s national jurisdiction.

NAD’s report includes a detailed outline of Wendy’s quality control procedures, as described in an affidavit by Bob McQuattie, Wendy’s vp-product and technical services quality assurance.

Wendy’s was unavailable for comment.

Burger King’s senior communications analyst, Denise Wilson, said in response to the decision, “Burger King Corp. appreciates the National Advertising Division’s attention to this matter. We will continue to support industry self-regulation as a means of ensuring truth and accuracy in national advertising.”

According to NAD, “NAD appreciated the advertiser’s participation in the self-regulatory process and was satisfied with the advertiser’s assurance that it has removed the ‘local’ advertisements which contained unqualified ‘Always Fresh, Never Frozen’ claims and will not issue any future fresh-beef advertisements without the disclaimer that ‘fresh beef is available in 48 contiguous US [states] and CN,” the board wrote.

Wendy’s lead agency is Saatchi & Saatchi, New York. The Dublin, Ohio-based company spent $308.2 million on ads in 2007 (not including online), per Nielsen Monitor-Plus. Miami-based Burger King spent $260 million on ads in 2007 and $123 million January-May 2008 (not including online).