When Does Artistic License Become A Claim?

In a somewhat unusual case, NAD determined that Tyson Foods "did not materially alter or enhance" the appearance of its Hillshire Farm Ultra Thin Oven Roasted Turkey Breast by removing the inner plastic package from the product in commercials.  Kraft Heinz, maker of Oscar Mayer cold cuts, had challenged the commercials, arguing that the removal of the inner packaging conveyed the message that Tyson's Oven Roasted Turkey Breast is packaged without a plastic bag inside the container. And since Kraft Heinz had developed its own patented packaging for its cold cuts that obviates the need for an inner plastic bag, it really cared about the possible message conveyed by Tyson.

NAD found that there was no dispute as to whether the product's packaging as depicted in the commercials had been altered and that the inner package had been removed.  The issue, then, was whether "this depiction communicate[d] a material claim." Neither party submitted a consumer perception study, so