Expert unsure GNC can make case over rejected ad

By Hank Schultz contact

- Last updated on GMT

A still image from GNC's rejected ad.  GNC photo.
A still image from GNC's rejected ad. GNC photo.

Related tags: National football league

GNC has investigated filing a legal claim over its rejected Super Bowl ad. But an expert in broadcast advertising law said TV networks hold most of the cards in this type of transaction.

GNC’s TV ad for Sunday’s Super Bowl, titled Courage to Change, was rejected by the NFL only days before the event. The ostensible reason is that a small portion of GNC’s product’s—chief marketing officer Jeff Hennion put it at about 3%—contain two ingredients, synephrine, or bitter orange extract, and DHEA, that appear on lists of banned substances for NFL players.

Hennion confirmed for NutraIngredients-USA that the company is looking into legal action. Among the company’s complaints is that Fox Broadcasting approved the ad’s script and the finished product, and that the network did not inform GNC that the ad would need to pass NFL muster, too.

Ron Urbach is chairman of the law firm Davis & Gilbert LLC that focuses on the advertising market and media and communications industries. Urbach said that while he couldn’t comment on the specifics of GNC’s allegations, as much of the situation remains confidential, he was familiar with the process of placing ads into the Super Bowl broadcast and into other major sporting events.

No ‘norm’ in broadcast contracts

Urbach said that while it could be seen as somewhat unusual to have an ad rejected as late in the game as GNC’s apparently was, it’s not necessarily completely outside the norm. And one reason this is true that there isn’t really much of a ‘norm’ in this game. This particular business sphere tends to be driven more by relationships than by a legacy of written contracts, he said. Millions of dollars of advertising contracts on the Super Bowl and other big sporting events are often concluded on handshake deals, Urbach said.

“The norm, if there is one, would be to have more lead time in which you would submit scripts for the approval process,”​ Urbach told NutraIngredients-USA.

In that approval process, Urbach said networks focus on two buckets of information.

“One would be the claims or statements being made about the product or service. Are they true? Are they supported? If Coke wanted to air an ad that said ‘Coke tastes better than Pepsi,’ they aren’t going to let that get on the air unless they had some evidence to back that up,”​ he said.

“The other bucket is a matter of taste,”​ Urbach said. “Does the ad have too much violence? Is there something else about the ad that might offend the network’s audience? Or is it a product or service with which the network or the sporting body might not want to be associated?

“Typically, when you are talking about a big event, like the Olympics, there might need to be a process of additional approval from the Olympic committee or the sports league,”​ he said.

The rejection of GNC would appear to fall within this second bucket. At some point someone seemingly took a step back and said, wait, don’t they sell x? While Urbach said he could see how the way this process played out could certainly be frustrating for GNC, he said he’s not sure it rises the level of an offense that could form the basis of a lawsuit, though he cautioned that a breach-of-contract suit would rest on the precise wording of whatever contract GNC had with Fox.

“In my experience networks reserve the right to make changes at any time,”​ he said. “They can reject an ad at any time for any reason. The basis of this action could well be that someone should have said something (about the NFL’s banned ingredients list concerns)and didn’t,”​ he said.

Boon, or bane?

In the end, GNC may have been helped more than it was hurt by the incident. Any publicity, good or bad, is better than anonymity in the marketplace, or so the thinking goes. Urbach referenced the strategy of home improvement retailer 84 Lumber’s Super Bowl ad, which had an inconclusive 90 second script about immigrants crossing the US border that referenced a longer, more highly politically charged version on the company’s website, a version whose overtones meant that the retailer knew would not be approved for broadcast. The retailer’s website has reportedly been swamped with traffic in the past 48 hours. GNC was featuring the ad on its website in the days running up the Super Bowl, though it is not featured there today.

“Sometimes having a story about not getting your spot on the broadcast could be a good thing, and could generate a lot more media attention than just the single airing of the ad. They didn’t have to pay for the airing of the ad, for one thing, and they have probably gotten a lot of viewership for the ad on their site with people coming to see what the fuss was about,”​ he said.

Related topics: Manufacturers, Sports nutrition

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1 comment

What about Walmart?

Posted by Anthony,

So, the NFL will be rejecting all walmart advertising? They carry "fat burners" with bitter orange in the ingredients. We'll see that will never happen.

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