NAD Resolves Dispute Between Competing Sports Drinks

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

Claims by BodyArmor Nutrition, LLC, for BodyArmor SuperDrink and BodyArmor Lyte sports drink were challenged by Stokely-Van Camp, Inc. (SVC), maker of Gatorade sports drinks, at the National Advertising Division (NAD).

Two of the challenged claims were made in banner and in-store advertising:

  • BodyArmor SuperDrink is “The only sports drink. No artificial sweeteners, flavors or dyes. Potassium packed electrolytes”; and
  • BodyArmor Lyte is “The only sports drink. Low calorie. No sugar added. No artificial sweeteners, flavors or dyes.”

BodyArmor argued that the claim “The Only Sports Drink” was hyperbolic and obvious puffery, since no reasonable consumer would believe that BodyArmor is the only sports drink on the market. It also argued that the claims otherwise include truthful and accurate monadic claims about the advertised BodyArmor products.

The NAD noted that an advertiser is responsible for all reasonable interpretations of its claims, not simply the messages it intended to convey. The NAD determined that one reasonable takeaway from these claims is the unsupported implied message that BodyArmor SuperDrink is the only sports drink that has no artificial flavors or sweeteners and contains potassium-packed electrolytes, and that BodyArmor Lyte is the only sports drink that is low in calories and contains no added sugar, artificial sweeteners, flavors and dyes.

Although the NAD stated that in certain contexts, “The Only Sports Drink” may be puffery, the fact that other sports drinks, including Gatorade, have these attributes means that these claims were not substantiated, and it recommended that they be discontinued.

SVC also challenged two short videos on BodyArmor’s Twitter and Instagram accounts that compared specific BodyArmor and Gatorade flavors. For example, one video showed a bottle of BodyArmor’s Fruit Punch beverage on one side and a bottle of Gatorade’s Fruit Punch Thirst Quencher on the other side. The next frame showed the same side-by-side comparison with “No artificial dyes” under the BodyArmor bottle and “Made with Red Dye 40” under the Gatorade bottle. The comparative display continued in the third frame, with “Contains vitamins” under the BodyArmor bottle and “Contains no vitamins” under the Gatorade bottle.

The NAD determined that the videos do not reasonably convey any unsupported messages about the Gatorade flavors depicted in the videos or any other Gatorade product. Although SVC argued that consumers could take away a broader message about the full line of Gatorade products, the NAD noted that the video compares a single Gatorade flavor, depicting and describing it in a way that limits the message to a single flavor. As a result, consumers would not reasonably take away a message about the full line of Gatorade products broadly.

In addition, SVC challenged claims that appeared in a BodyArmor press kit that was sent to influencers and members of the media in connection with its “Dare to Compare” campaign. The NAD stated that BodyArmor’s press kit accurately highlights the different ingredients in specific BodyArmor products and specific Gatorade products, and asks whether, based on those differences, the recipients would like to “reconsider” their sports drink. NAD determined that the press kit did not reasonably convey any broader unsupported messages about the quality or performance of BodyArmor and Gatorade products.

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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