In a decision issued last month, the National Advertising Division (“NAD”) determined that the use of emojis in an advertisement is enough to constitute a claim. Stokely-Van Camp, the manufacturer of Gatorade challenged four of BodyArmor’s express claims which were made in a social media post. In the video, Baker Mayfield, BodyArmor endorser and Cleveland Browns quarterback, does a blind “taste test” of four drinks. During the “taste test”, Mayfield samples three BodyArmor flavors and one containing Gatorade. Mayfield proudly identifies the BodyArmor flavors, but when faced with the Gatorade, he spits it out saying “Yo, that is not cool. That’s awful.” At the same time, the green nauseated face emoji and face with tears of joy emoji appear on the screen.
Stokely challenged the advertisement as falsely disparaging under the Fast-Track SWIFT process with the NAD. The four express claims included: (1) Gatorade is “awful”; (2) having to drink Gatorade is “not cool”; (3) Gatorade is nauseating (as depicted via nauseated emoji); and (4) people spit Gatorade out after drinking it. BodyArmor argued that emojis are subjective and open to interpretation, but the NAD disagreed stating that emojis are commonly substituted for written word in “contemporary communications and some emojis more clearly communicate feelings or emotions than others.” The NAD further concluded that appearance of the emojis coupled with Mayfield’s reaction conveyed a negative message about Gatorade. After the NAD recommended that BodyArmor discontinue the express claims made in the video. BodyArmor removed the post from its social media pages. Read more about this decision in the press release here.