Reply to Jacob Jacoby

Ivan L. Preston, University of Wisconsin
[ to cite ]:
Ivan L. Preston (1995) ,"Reply to Jacob Jacoby", in NA - Advances in Consumer Research Volume 22, eds. Frank R. Kardes and Mita Sujan, Provo, UT : Association for Consumer Research, Pages: 54-55.

Advances in Consumer Research Volume 22, 1995      Pages 54-55


Ivan L. Preston, University of Wisconsin

This responds to the references made to me by Jack Jacoby in the publication version of his 1994 Fellow Address. He said I misrepresented his research in the following statement in an article: "In another example of avoidably erroneous evidence, Kraft Inc. tried to establish that the presence of calcium is not regarded as material by consumers who purchase cheese." The reason for the misrepresentation, Jack said, is that "the purpose of my research was not to determine whether the presence of calcium was material to consumers. Rather, it was to determine whether consumers thought the difference in calcium [between two sources] was material."

To begin, my statement did not mention Jack explicitly. I mentioned no one but Kraft in the cited statement or elsewhere because I was describing Kraft's overall defense against charges by the FTC. That defense included but was not restricted to Jack's actions, and Jack had no overall role nor responsibility for the whole. Jack's survey was of course part of Kraft's defense. But it was not all of it, and Jack was not Kraft's only witness.

Although Jack's expertise was certainly solicited and used, the law firm that hired him and supervised his work had oversight over, and responsibility for, everything that he did. In turn, Kraft had oversight over, and responsibility for, everything that the law firm, as its agent, did. Everything Jack did, then, was what Kraft chose to have him do, and again, what Kraft did was more than what Jack did.

Accordingly, a mention of Kraft can scarcely be interpretable as an implied mention of Jack. Many readers could not have seen Jack identified because of not even knowing of his role in the case. And of those who did have such prior knowledge, many would also have known that the case consisted of other elements besides Jack's survey. Indeed, it would seem quite unlikely that those readers most sophisticated with legal cases in general or most informed about the Kraft case in particular would think that a reference to Kraft's defense must constitute a reference narrowly to only one element of that defense. Thus, while one of the commonsense expectations about a statement that offends a person is that it should identify that person, it would appear unlikely in the given context that my statement would be taken by any significant number of readers as identifying Jack specifically.

Jack says the reference elsewhere by a co-author and myself to an action taken in the Kraft case by "Jacoby" shows that I knew it was him all the time. Of course I knew of his participation, and in the co-authored piece we cited him by name because we specifically wanted to comment on what he did. In my own piece I did not.

Peripherally, Jack seems incorrect in describing my action as "Mis-characterizing a published work." I have never seen his survey in published form, nor known it to be published. I have never seen a copy of it in any form, but have only read what the legal decisions said about it.

My statement said that Kraft used "avoidably erroneous evidence," defined in my article as that which its submitter could predict in advance will be rejected in court because rejection of similar evidence had occurred earlier. I stand behind the statement, for it was surely within the legal expertise of Kraft's or its outside lawyers to know that similar evidence had been rejected before and therefore was subject to rejection again.

However, it was not within Jack's consumer behavior expertise to know that. The difference in type of expertise absolves him of any charge of error on the point while also amounting to still another reason why my statement is unlikely to be taken by readers as identifying him.

My basic reason for calling "avoidably erroneous" Kraft's contention (that a presence-of-calcium claim was not material) is reflected in the comment by the judge that it is a "common sense conclusion that ads which make nutrition claims, which are disseminated over an extensive period of time, and which help to increase sales, make claims which are material to consumers." That is not only commensensical, but the point had appeared previously at the FTC, even if not specifically concerning calcium in cheese. The judge said that Kraft commissioned a materiality survey despite that. He attributed the decision to Kraft, as do I.

I doubt that my statement would be considered offensive to Kraft in the context. Even if it were so to a researcher, it would not be to a law firm. Lawyers often take steps they know have failed in the past. Reasons for such actions are speculated upon in my article, and examples are given of such actions in advertising cases. I don't think lawyers should be allowed to do such things, but that's another topic.

Returning to Jack's objection that it was not the purpose of his research to examine the materiality of a presence-of-calcium claim, the initial decision shows that the judge interpreted him as showing an interest in that. Also, although Jack wrote that "All parties...agreed that calcium was material," the opinions of judge and commissioners and appellate court all appear to have interpreted Kraft as disputing that point.

The judge wrote that one of the purposes of Jack's survey was "to determine ... whether ... in general, calcium was claimed to be important by consumers in their decision to purchase Kraft Singles slices...." He probably thought that because Jack asked his subjects a question about the important of the presence of calcium apart from considering any difference in amounts available from different sources, "thereby showing," the judge wrote, "according to Dr. Jacoby, that calcium is, in fact, relatively unimportant to their purchase...." Thus while Jack's stated purpose was to examine the materiality of differences in calcium in different cheeses, he nonetheless offered on the basis of his survey evidence what the judge interpreted as a conclusion about the materiality of the presence of calcium.

"I reject his conclusion," the judge wrote, because, although Jack had emphasized that subjects rated various other cheese attributes as more important than calcium, they had also rated calcium as important (71% said "extremely" or "very" important). The Commission opinion said "We agree with the ALJ [judge] that the results of Kraft's materiality survey confirm the importance of calcium as a factor in consumers' purchase decisions...." Later the appellate court said "Kraft's arguments lack merit. The FTC found solid evidence that consumers placed great importance on calcium consumption...."

Overall, then, the case certainly discussed the materiality of the presence of calcium, and Jack's survey was in the middle of that discussion whether he intended it to be or not. If his stated intent was misunderstood, it was by the judge, commissioners, and appellate court. Perhaps it was difficult for those jurists to interpret a situation in which a party participated in an activity while claiming he intended not to. Meanwhile, there seems no doubt that Kraft involved itself with the materiality of the presence-of-calcium claim by intent.

In summary, Jack Jacoby involved himself, by legal conclusion although not by his stated intent, in the materiality of a presence-of-calcium claim. That involvement, however, was not "avoidably erroneous" to him, and for that and other reasons cited my statement was not about him. There would thus seem to be no basis for the statement to offend him.