NAD Considers Context in Puffery Argument

Kelley Drye & Warren LLP

Stokely-Van Camp (or “SVC”), the makers of Gatorade, recently challenged claims made by BodyArmor about its SuperDrink and Lyte sports drinks, including banners with the following text:

  • The only sports drink. No artificial sweeteners, flavors, or dyes. Potassium packed electrolytes.
  • The only sports drink. Low calorie. No sugar added. No artificial sweeteners, flavors, or dyes.

SVC worried that consumers would view these claims as comparisons to Gatorade products. BodyArmor disagreed. It argued that the first sentence – “the only sports drink” – was obvious puffery because no reasonable consumer would believe that BodyArmor is the only sports drink on the market. And it argued that the subsequent sentences were truthful monadic claims about its own products.

NAD started its decision with a reminder that it’s important to consider the “net impression created by an advertisement as a whole,” rather than the accuracy of specific phrases standing alone. Although “the only sports drink” may be puffery standing on its own and the remaining claims may be accurate as they pertain to the advertised products, the inquiry doesn’t stop there.

In this case, because “the only sports drink” appeared in close proximity to accompanying text describing the products’ contents, NAD was concerned that consumers would read them together. In other words, consumers could reasonably interpret the ads to mean that the BodyArmor beverages were the only sports drinks to have the attributes listed (such as having no artificial sweeteners). This wasn’t accurate.

This case highlights a common theme in cases in which advertisers raise a puffery defense. Claims that may be puffery on their own may take on a different meaning based on the words that appear around them. It’s always important for advertisers to look at these things in context and through the eyes of typical consumer.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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