In a recent case, the National Advertising Division (NAD) of BBB National Programs discussed the use of emojis in advertising and whether they can constitute claims.
The case involved a short video in social media posts advertising BodyArmor sports drink, a product of BA Sports Nutrition. The video showed Baker Mayfield, the Cleveland Browns quarterback and a BodyArmor endorser, taking a blind "taste test." Mr. Mayfield is blindfolded and is asked to identify BodyArmor flavors he has been handed. After correctly identifying the first three flavors, he is then handed what is clearly a bottle of Gatorade Orange Thirst Quencher sports drink. After taking a sip, the green "nauseated face" emoji is displayed on the screen, along with the yellow laughing "face with tears of joy" emoji. Mr. Mayfield spits the Gatorade out and says, "Yo, that is not cool. That's awful," while removing his blindfold and shaking his head. Mr. Mayfield's social media accounts caption the video "I'm not sure I'll ever forgive you for this."
Stokely-Van Camp, the maker of Gatorade, challenged the advertising as falsely disparaging. The challenge was filed under the Fast-Track SWIFT process, NAD's expedited process for single, well-defined issues that do not require review of complex legal argument or evidence. BodyArmor argued that the claims at issue were implied claims, which are not appropriate for resolution under the SWIFT process. NAD disagreed, concluding that there was a single issue presented...
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