In a pair of recent decisions, the National Advertising Division (NAD) of BBB National Programs examined the use of emojis in advertising and found in at least one case that emojis can make expressly disparaging statements.

A global study of 7,000 emoji users conducted by Adobe in 2021 revealed that more than half of those surveyed are likely to open a brand's emails or push notifications if they contain emojis. Over 40 percent of the sample said they were more likely to purchase products advertised using emojis. Younger consumers also prefer customer support teams that use emojis in chat or email, according to Inc Magazine. But the NAD's recent decisions show that brands should be judicious with their emoji use — or, at least stop to consider what statement those emojis may be making on their behalf.

In a case of first impression, the NAD examined a social media video from BA Sports Nutrition, which produces the sports drink BodyArmor. It was shared by BA Sports Nutrition and by Baker Mayfield, Cleveland Browns quarterback and BodyArmor endorser. In a "blind taste test" video, Mayfield tastes and recognizes three BodyArmor flavors before he is handed an orange drink that the NAD said was "clearly" Gatorade's Orange Thirst Quencher. When Mayfield tastes the Gatorade, the "Nauseated Face" and "Face with Tears of Joy" emojis appear on the video while he says the drink is "awful."

The NAD found that the video falsely disparaged Gatorade. Considering and rejecting BA Sports...

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