Lily of the Desert Nutraceuticals, Inc.

(Tropical Plantation Avocado Oil),

Report #7265, NAD/CARU Case Reports 

(April 2024)

William Frazier*

I. Why It Made the List

Case:     

Global demand for avocado oil has skyrocketed in recent years due to increasing consumer preference for natural and organic products. Pure avocado oil, comprised of heart-healthy oleic acids, rich in monounsaturated fatty acids and vitamins, is viewed as a healthy alternative to other cooking oils. Avocado oil producers have responded to the demand by flooding the market with avocado oil products.

The rapid pace of product innovation has eclipsed the speed of the legislative response from the federal and international regulatory organizations responsible for establishing standards for the authentication and purity of avocado oil. The marketplace appears to be aware of the regulatory gap and recent market research suggests that in an effort to lower production costs and increase profitably, some avocado oil products are being mixed with inferior oils. In 2020, the University of California, Davis researchers tested several major avocado oil brands to determine which brands were actually pure and not adulterated with other oils and found that 82% of the avocado oil products examined were a blend of oils.[1]

BBB National Programs’ National Advertising Division (NAD) examined claims made in a challenge filed by Chosen Foods Inc. (“Chosen”) against competitor Lily of the Desert Nutraceuticals, Inc (“Lily”) for its Tropical Plantation Avocado Oil.[2] NAD’s decision provides an excellent example of the importance of substantiating advertising claims, maintaining transparency, and adhering to industry standards to protect consumer trust and ensure fair competition. Moreover, it illustrates the crucial role industry self-regulation plays by providing timely, expert guidance, deterrence, and enforcement on matters where regulatory agencies have yet to establish industry-wide standards or to implement oversight to protect consumers.

II. DISCUSSION

Background

Lily was established in 1971 and specializes in producing and distributing a wide range of aloe vera-based health and wellness products. The company owns several brands—including Tropical Plantation, which produces avocado oil.

Chosen is a leading seller of avocado-based cooking oils and related consumer products. The company was founded in 2011 and sells a range of cooking sprays, mayonnaise, dressings, simmer sauces, guacamole, and salsa featuring avocado ingredients.

Lily marketed its avocado oil under the “Tropical Planation” brand online and in retail stores in a green 1.5-liter plastic bottle. “100% Pure Avocado Oil” appeared prominently on the front of the bottle above an image of three avocados, one cut in half displaying the pit. Text under the image indicated that the product was “Cold Pressed & Naturally Refined,” “Perfect for High Heat Cooking,” and “Naturally Cholesterol Free.” Additional text on the back of the bottle described the product as “100% Pure Avocado Oil” and “made from Hass Avocados.”

Chosen challenged the claim on the label, “100% Pure Avocado Oil,” arguing it reasonably conveys the misleading message to consumers that the product is comprised solely of avocado oil.

Message Conveyed—“100% Pure Avocado Oil”

It is a bedrock principle of advertising law that advertisers must possess a “reasonable basis” for claims disseminated in advertising.¹ What constitutes a “reasonable basis” depends on several factors, including the type of product, the type of claim, the consumer benefit from a truthful claim, the ease of developing substantiation for the claim, the consequences of a false claim, and the amount of substantiation experts in the field believe is reasonable.² In the absence of consumer perception evidence, NAD steps into the shoes of the reasonable consumer to determine the reasonable messages conveyed by an advertisement.

NAD has routinely recognized the powerful impact that “100%” claims have on consumers. In addition, the use of the numerical “100%” conveys a message that the product contains 100% of the referenced ingredient. NAD found that the express reference to 100% avocado oil on the label along with the images of the pristine avocados unequivocally communicated that the product only contains a single ingredient. Similarly, the back of the bottle refers to “100% Pure Avocado Oil” and informs consumers that the product is comprised of a single ingredient: “100% Hass Avocados.”

International Regulatory Framework—In Progress

Chosen argued the claim “100% Pure Avocado Oil” was not supported and submitted third-party purity testing by SGS North America, Inc (“SGS”) demonstrating that the oil did not meet the purity standards using draft CODEX[3] and standards published by the Mexican government (“Official Mexican Standards” or “NOM”).⁵ Chosen explained industry experts recognize both the Official Mexican Standards and draft CODEX standards for determining the purity of avocado oil because currently there is no established U.S. or international standard.⁶ Chosen argued that both the CODEX and NOM standards establish minimum and/or maximum ranges of fatty acids and sterols present in pure avocado oil. Chosen argued that SGS’s testing using these standards established that Lily’s product is not 100% pure avocado oil as it includes less palmitoleic acid (C16:1), and more stearic acid (C18:0) and stigmasterol than permitted by the NOM and draft CODEX standard. Chosen asserted that these results indicate that the oil is mixed with safflower, sunflower, soybean, or canola oil.

Lily did not dispute the results of the SGS testing,[4] but argued that Chosen’s reliance on the draft CODEX avocado oil standard was inappropriate because it is not widely accepted by industry and is still being developed. Lily also argued the draft CODEX and NOM standards are only applicable to a small set of avocado growers and processors in Mexico. Lily maintained that current in-process CODEX and NOM standards are not all-encompassing and do not apply to all avocado oils, especially refined avocado oils like Tropical Plantation.

Lily’s Substantiation

In an NAD proceeding, the advertiser has the initial burden of providing support for the challenged claims. If NAD finds that an advertiser has provided a reasonable basis for its claim, the burden shifts to the challenger to show either that the advertiser’s evidence is fatally flawed or that the challenger possesses stronger, more persuasive evidence reaching a different result.”⁸ Against this background, NAD reviewed Lily’s evidence to determine if the evidence established a reasonable basis for the challenged claim.

An oil is considered 100% pure or authentic to consumers if there are no other additives or oils present other than what is listed on the label. As support for the 100% pure avocado oil claim, Lily relied on internally developed testing, assurances about the purity and authenticity of the avocado oil provided by the manufacturer, and third-party authentication testing performed by Eurofins.

Ciuti International

Lily explained that it sources its avocado oil from Ciuti International (“Ciuti”). Ciuti provides Lily with sample lots of avocado oil prior to shipping full totes of avocado oil to Lily for bottling and distribution. These pre-shipment samples, also known as “retained lots,” are pulled from the Ciuti’s production process when filling the totes. Lily explained the U.S. Food and Drug Administration (FDA) requires retained samples be taken for each production run. Lily explained that it evaluates each pre-shipment sample based upon its own internal specifications and matches those results with the Certificate of Analysis (“Ciuti COA”) provided by Ciuti with each shipment. The Ciuti COA identifies the oil as “Avocado oil” and includes charts detailing the acidity, peroxide value, fatty acid composition, and sterolic fraction of the oil. The fatty acid and sterols are further subdivided into two columns, fifteen fatty acids and eighteen sterols, and the unit percentages of each component are reported in boxes next to each acid or sterol.

Lily’s Internal Testing Protocol

Lily explained that it developed and implemented an internal testing protocol to verify the identity and suitability of the oil it receives from Ciuti for bottling. Specifically, Lily explained that its internal testing provides information about the quality and purity of the oil and includes: (1) an organoleptic description of the oil to describe the physical appearance, taste, and odor of each lot; (2) fatty acid profile testing for the marker analytes palmitic, oleic, linoleic, and linolenic acids; (3) color monitoring to establish a permanent color profile for avocado oil based on internal data; (4) peroxide value testing to verify that the oil is not rancid; (5) moisture testing; (6) iodine value; and (7) microbiological testing to verify that the oil is free of microbial contamination. After the testing, Lily records the results of its internal testing on a Certificate of Analysis (“Lily-COA”) and notes whether the results conform with the Ciuti’s Certificate of Analysis form. Lily argued that this internal testing protocol demonstrates that the refined avocado oil conforms to Lily’s internal specifications that identifies the acceptable criteria for each of the tests identified above.

Eurofins—Nuclear Magnetic Resonance Fats and Oils: Authenticity Testing

Lily’s Analytical and Regulatory specialists explained that Ciuti and Lily each contracted with Eurofins Analytics[5]—a third-party independent laboratory—to authenticate the oil used in Tropical Plantation.

Eurofins conducted nuclear magnetic resonance (NMR) spectroscopy on the oil samples provided by Ciuti and Lily. NMR spectroscopy is a technique that provides information about the molecular structure of a sample. NMR uses a strong magnetic field and radio waves to trigger the release of electromagnetic energy from atoms with nuclei with spin. Computers convert these data into contour spectrum plots—graphs with spikes and peaks at certain points corresponding to certain markers.

Eurofins conducted 1-H NMR and C13-NMR profiling tests to authenticate the avocado oil content of Lily’s Tropical Plantation. According to Eurofins, the C13 spectrum test analyzes the origin of a fat/oil by comparing the sample against Eurofins’ database of authentic fat/oil. In addition, 1-H spectrum profiling provides information about the effects of processing on oils/fats. Lily argued that both tests are recommended for single-source ingredients.

Eurofins provided a Certificate of Analysis and an Analytical Report about the 1-H NMR and C13-NMR profiling tests concluding that Tropical Plantation is pure avocado oil that is not blended or adulterated with any other oils. Lily argued that NMR analysis represents the best method available for detecting whether avocado oil has been blended with other oils and that any “peculiarities” identified by the tests would be due to a molecular variation representing the presence of other oils.

Eurofins, however, did not disclose the full spectrum of their reference samples from their database or what deviations from the reference sample it considers acceptable, maintaining that the information is proprietary and confidential.

NAD Recommendations

NAD examined the testing provided by both Chosen and Lily. NAD noted Ciuti’s and Lily’s internal testing protocol were not designed to determine the authenticity of the oil. Rather, each assessment was done to confirm that the sample lot conforms to undisclosed internal quality standards established by Ciuti and Lily. While Lily disclosed the acceptable ranges for fatty acids and sterols, it did not provide evidence that its internal testing protocol can detect adulteration of the oil by other oils which share fatty acid and sterol profiles with authentic avocado oil. Accordingly, NAD determined that Lily’s internal testing protocol was not sufficiently reliable to support the challenged “100% Pure Avocado Oil” claim.

Additionally, while Lily represented that Eurofins chose reliable samples of avocado oil as reference samples for the NMR profile tests, there was no evidence in the record as to what markers were used to identify the oil as avocado oil because NMR testing spectrum plots have spikes and peaks that correspond to certain markers which may be similar for both avocado oil and other less expensive oils that can be used as adulterants. Additionally, there was no evidence in the record to explain how the test results compared Lily’s oil to the reference sample and what markers would represent a “peculiarity” that would call into question the authenticity of the oil. As a result, NAD could not assess the reliability of the NMR testing methodology to ensure that it is a good fit for the challenged claim.

Given that Lily’s internal testing protocol, NMR testing, and reliance on Ciuti’s assertions of purity and authenticity were not sufficiently reliable or a good fit for the claim that Tropical Plantation is “100% Pure” avocado oil, NAD recommended Lily discontinue the express claim “100% Pure Avocado Oil” to avoid conveying the unsupported message that the product is 100% pure avocado oil.

Lily agreed to comply with NAD’s recommendation.

III.   Impact

NAD’s recommendation to Lily to discontinue the “100% Pure” claim due to insufficient evidence underscores the importance of maintaining consumer trust through accurate and truthful advertising. NAD provides consistent guidance to companies to ensure they understand the rules of the road in claim substantiation, operate on a level playing field, and foster consumer confidence in advertising.

About the National Advertising Division

The National Advertising Division (NAD) was established to ensure truth and accuracy in advertising, responding to challenges from competitors or through its own inquiries.

Founded in 1971 by the U.S. advertising industry, the National Advertising Division is the industry’s self-regulatory forum for review of national advertising. NAD reviews national advertising claims directed to consumers, professionals, or business entities, in any media. The majority of cases heard by NAD are advertising challenges brought by competitors. However, through its Monitoring Program, NAD can initiate a challenge based on its own monitoring of the marketplace and review advertising claims in a variety of contexts and product categories. NAD currently issues over 100 decisions each year, and NAD’s appellate arm, the National Advertising Review Board (NARB), currently hears over a dozen cases annually.

*   William S. Frazier is an attorney with the National Advertising Division of BBB National Programs.

[1]   Hilary S. Green & Selina C. Wang, “First report on quality and purity evaluations of avocado oil sold in the US,” Food Control, Volume 116, 2020, https://www.sciencedirect.com/science/article/pii/‌S0‌9‌5‌6‌7‌‌1‌3‌‌520302449 and https://www.ucdavis.edu/food/news/study-finds-82-percent-avocado-oil-rancid-or-mixed‌-other-oils;

Abstract: The demand for avocado oil has increased significantly as consumers resonate with its potential health benefits, however, due to the lack of enforceable standards, consumers are unprotected from fraud (i.e., economic motivated adulteration). This study analyzed avocado oils currently on the market in the US to evaluate their quality (e.g., free fatty acidity, peroxide value, UV absorbances, vitamin E) and purity (e.g., fatty acids, sterols, triacylglycerols). Our results showed that the majority of commercial samples were oxidized before reaching the expiration date listed on the bottle. In addition, adulteration with soybean oil at levels near 100% was confirmed in two “extra virgin” and one “refined” sample. These findings demonstrate there is an urgent need to develop standards for avocado oil not only to ensure the consumers receive high quality and authentic products but to establish a level playing field to support the continuing growth of global avocado oil industry.

[2]   Lily of the Desert Nutraceuticals, Inc. (Tropical Plantation Avocado Oil), Report #7265, NAD/CARU Case Reports (Apr. 2024).

[3]   The Codex Alimentarius Commission, established in 1963 by the Food and Agriculture Organization (FAO) of the United Nations and WHO, develops harmonized international food standards, guidelines, and codes of practice to protect the health of consumers and ensure fair trade practices in the food trade. It also promotes coordination of all food standards work undertaken by international governmental and nongovernmental organizations.

Since the creation of the World Trade Organization (WTO) and the Agreement on Sanitary and Phytosanitary Standards (SPS), foods in international trade must adhere to Codex standards. CODEX Alimentarius Commission (“CODEX”) has developed a draft standard for avocado oil that will become internationally recognized once finalized. See https://www.fao.org/fao-who-codexalimentarius/about-codex/en/.

[4]   The parties agreed that purity ranges per CODEX and NOM for linoleic acid and linolenic acid in avocado oil overlap with those for sunflower oil and safflower oil.

[5]   Eurofins offers a portfolio of analytical methods for evaluating the safety, identity, composition, authenticity, origin, and purity of biological substances and products, as well as for innovative clinical diagnostics. See About Us, Eurofins, https://www.eurofins.com/about-us/.