American Media, Inc. (Shape Water Boosters)

The owner and publisher of SHAPE fitness magazine, American Media, Inc. (AMI) (defendant) included an article in the magazine captioned “news” that promoted a product called SHAPE Water Boosters (the boosters) as an aid to stay hydrated. The boosters were flavored, concentrated nutrients that consumers could add to water to improve the taste. The article addressed the health benefits of hydration and appeared to be editorial content recommending the boosters. The article even resembled genuine news articles published in the same issue. However, the article was actually advertising content published by AMI to promote the boosters to magazine readers. The Better Business Bureau’s National Advertising Division (NAD) (plaintiff), a self-regulatory organization created to prevent false or deceptive advertising, routinely monitored business advertising to protect consumers. The NAD reviewed AMI’s “news” article promoting the boosters and challenged the advertisement’s format as blurring the line between advertising content and editorial content in a way that might confuse health-and-fitness magazine consumers who expected product recommendations. The NAD expressed concern that consumers might tend to believe AMI’s objective claims about the boosters’ benefits due to the context of the advertisement. AMI contended that an editor’s note and two full-page advertisements in the same issue made clear that SHAPE magazine was promoting its own products. AMI claimed that the typical readers of SHAPE magazine were sophisticated, educated women who were unlikely to be misled or confused as to the connection between SHAPE magazine and the boosters with the same brand name.