National Advertising Division Finds Safe Catch Tuna Mercury Testing Claims Supported; Recommends Modification or Discontinuance of Certain Other Claims

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Jul 20, 2021, 09:00 ET

NEW YORK, July 20, 2021 /PRNewswire/ -- The National Advertising Division (NAD) of BBB National Programs determined that Safe Catch, Inc., a manufacturer of pouched and canned tuna products sold under the brands Safe Catch Elite, Safe Catch Ahi Yellowfin Tuna, and Safe Catch Wild Albacore, provided a reasonable basis for several claims but recommended that others be modified or discontinued. NAD determined that the advertiser provided a reasonable basis for:

Claims that every tuna used to make Safe Catch tuna products is tested for mercury.
Claims that its tuna has the "lowest mercury" and "lowest mercury limit" of any brand.
"100% Sustainably Caught Wild Tuna."
"Meets Consumer Reports 'Low Mercury' Criteria set for sensitive populations, such as pregnant women and children."
Its "healthier" tuna claim as it appears in the context of the packaging, which identifies that one of the ways in which the product can be considered "healthier" is that it is the "lowest mercury tuna."
The "averaging 22x lower than the FDA mercury action limit" claim as to both Safe Catch Elite (all skipjack tuna) and Yellowfin.

NAD also concluded that the advertiser may continue to use the product name Safe Catch.

However, NAD recommended that Safe Catch discontinue or modify:

The "8x lower than Albacore tuna (FDA)" claim on cans of Safe Catch Elite.
The "Why test every tuna?" graphic.
The claim "22x lower than the FDA's mercury limit" in the challenged social media post.
The claims "Safe Catch is the only seafood brand to align itself with the mercury standards of the medical community" and "our Elite Tuna has a strict limit that averages two times lower mercury than the recommendation for pregnant women and kids," in the challenged press release.

Additionally, NAD recommended that Safe Catch discontinue:

The reference to "athletes" in the "Safe Catch Elite" graphic.
The "better tasting" claim.
Endorsement claims by the American Pregnancy Association ("APA") that Safe Catch is the "only tuna endorsed by the American Pregnancy Association," and the "only seafood brand endorsed by the APA."
The "Best Choice-Clean Eating" and "Tuna Pick for Kids" claims.

The claims at issue were challenged by The National Fisheries Institute (NFI), a non-profit trade association that operates, among other councils, the Tuna Council which represents the largest processors and household names for canned and pouched tuna in the United States.

NAD determined that Safe Catch provided a reasonable basis for its claims that every tuna used to make Safe Catch tuna products is tested for mercury, including "every tuna mercury tested," "only safe catch tests every fish for mercury," and "the only brand to test every fish for mercury." Further, NAD determined that testing to a strict mercury limit and providing consumers with that information is consistent with the goals of the U.S. Food and Drug Administration, the Environmental Protection Agency, and the United States Department of Agriculture to balance health benefits and risks by encouraging consumers both to eat fish and to consistently limit their exposure to mercury.

However, NAD determined that the challenged "why test every tuna" graphic reasonably conveys the unsupported and falsely disparaging message that other commercially available brands of canned or pouched tuna use fish that fall into the "red fish" category and that such fish are dangerous because of their mercury levels and that they are impure. Therefore, NAD recommended that the advertiser discontinue the graphic and that its advertising avoid the implication that consumers face significant health risks associated with eating tuna other than Safe Catch.

Further, NAD determined that Safe Catch provided a reasonable basis for claims that its tuna has the "lowest mercury of any brand," "the lowest mercury limit of any brand," and that it is the "lowest mercury tuna of any brand." NAD also determined that the advertiser's "averaging 22x lower than the FDA mercury action limit" claim is supported as to both Safe Catch Elite (all skipjack tuna) and Yellowfin based on the advertiser's test results conducted by an independent laboratory on final products.

NAD also considered the message reasonably conveyed by Safe Catch's use of the claim "8x lower than albacore tuna (FDA)" on product labels of Safe Catch Elite. NAD was concerned that, in contrast to the context of how a similar claim appears on pouched products, consumers could interpret the claim on the can to apply to the Safe Catch Elite product, which does not contain albacore tuna, rather than a comparative message between the Safe Catch Elite skipjack product (whose front label does not identify the fish species as skipjack) versus the average mercury level in albacore tuna (per the FDA).

Therefore, NAD recommended that this claim be discontinued or modified on the can to avoid potential consumer confusion.

With regard to the challenged social media post which states, "Psst! Did you hear? . . . Our Elite Tuna averages 22x lower than the FDA's mercury action limit," NAD determined that the accompanying graphic could potentially confuse consumers into the mistaken belief that "our Elite Tuna" refers to all Safe Catch tuna products, including albacore, regardless of whether they are offered under the Elite sub brand. Therefore, NAD recommended that the advertiser modify its social media post to make it clear that the claim does not apply to Safe Catch Wild Albacore.

NAD determined that Safe Catch provided a reasonable basis for the claim "100% Sustainably Caught Wild Tuna." Further, NAD determined that the product name "Safe Catch" is not expressly false and could be understood to consumers to identify the fully supported claim that Safe Catch's fish are "sustainably caught." NAD concluded that the advertiser may continue to use the product name Safe Catch.

With regard to challenged claims in a Safe Catch press release, NAD recommended that the advertiser discontinue the claim "Safe Catch is the only seafood brand to align itself with the mercury standards of the medical community" or modify it to avoid conveying an overly broad message. NAD noted that there was no evidence in the record that the medical community has issued any mercury standards for manufacturers (only for consumers). Further, NAD recommended that the claim "our Elite Tuna has a strict limit that averages two times lower mercury than the recommendation for pregnant women and kids" be modified to more clearly identify that the claim is based on the mercury criteria set by Consumer Reports (not the recommendation of a government or medical body).

Further, NFI challenged claims appearing as part of a graphic on the homepage of Safe Catch's website stating: "What Makes Safe Catch Elite Better/Canned Tuna Made for Athletes, Kids, Pregnant Women & Everyone," along with a depiction of a list of attributes explaining the basis for Safe Catch's "better" claim. NAD concluded that the advertiser provided a reasonable basis for the claim that, based on the identified benefits, Safe Catch Elite is "better" for "kids, pregnant women & everyone."

However, NAD recommended that the reference to "athletes" be discontinued in the absence of any evidence showing that Safe Catch Elite is comparatively better than other brands in a way that is specific to the category of "athletes," or that athletes have increased sensitivity to mercury. NAD further determined that the advertiser provided a reasonable basis for the claim that Safe Catch Elite "Meets Consumer Reports 'Low Mercury' Criteria set for sensitive populations, such as pregnant women and children" (one of the attributes listed in conjunction with the graphic).

NAD determined that the advertiser provided a reasonable basis for its "healthier" tuna claim as it appears in the context of the packaging, which identifies that one of the ways in which the product can be considered "healthier" is that it is the "lowest mercury" tuna. However, because there was no evidence in the record regarding the amount of omega-3 oils found in Safe Catch versus other brands, NAD recommended that the advertiser modify its "healthier" claim to avoid conveying the comparative message that its products are "healthier" for other reasons, including that they contain more omega-3 oils than other brands.

NAD recommended that Safe Catch's "better tasting" claim be discontinued because it determined that the claim would likely be understood as an objective claim concerning overall taste superiority, which requires reliable taste testing as support. NAD noted that third-party awards for taste and innovation might provide reliable support for a different claim but cannot support the broad "better tasting" claim challenged.

NAD recommended that the advertiser discontinue the endorsement claims by the American Pregnancy Association (APA) that Safe Catch is the "only tuna endorsed by the American Pregnancy Association," and the "only seafood brand endorsed by the APA" in the absence of any evidence that the APA exercised the level of scientific expertise or conducted the type of comparative health and safety testing typically necessary to support endorsement of a tuna brand. NAD noted that nothing in its decision prevents the advertiser from continuing its usage of the APA logo or communicating that its relationship with the APA is that of a corporate sponsor (e.g., Safe Catch is the "official tuna of the American Pregnancy Association").

Finally, NFI took issue with Safe Catch's use of the logo for Parents Magazine along with the quotation "Tuna Pick for Kids," and the Muscle & Fitness logo accompanied by the phrase "Best Choice-Clean Eating." In the absence of any evidence in support of Safe Catch's "Best Choice-Clean Eating" claim, NAD recommended that it be discontinued. NAD also recommended that the "Tuna Pick for Kids" claim be discontinued because this phrase does not appear in the magazine article.

In its advertiser statement, Safe Catch stated that it "will comply with NAD's recommendations." The advertiser further stated that although it "respectfully disagrees" with NAD's recommendation regarding its "8x lower than albacore tuna (FDA)" claim on cans of Safe Catch Elite, "Safe Catch respects the self-regulatory process and will take all of NAD's recommendations into account for future advertising."

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About BBB National Programs: BBB National Programs is where businesses turn to enhance consumer trust and consumers are heard. The non-profit organization creates a fairer playing field for businesses and a better experience for consumers through the development and delivery of effective third-party accountability and dispute resolution programs. Embracing its role as an independent organization since the restructuring of the Council of Better Business Bureaus in June 2019, BBB National Programs today oversees more than a dozen leading national industry self-regulation programs, and continues to evolve its work and grow its impact by providing business guidance and fostering best practices in arenas such as advertising, child-directed marketing, and privacy. To learn more, visit bbbprograms.org.

About the National Advertising Division: The National Advertising Division (NAD) of BBB National Programs provides independent self-regulation and dispute resolution services, guiding the truthfulness of advertising across the U.S. NAD reviews national advertising in all media and its decisions set consistent standards for advertising truth and accuracy, delivering meaningful protection to consumers and leveling the playing field for business.  

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