National Advertising Division Resolves High Profile Advertising Dispute

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Most people, attorneys and non-attorneys alike, have heard of consumer protection agencies like the Federal Trade Commission, or FTC. Likely fewer, however, have heard of the National Advertising Division, or NAD. In short, the NAD operates as the advertising industry’s internal regulatory agency. The NAD monitors truthfulness and accuracy in advertising, and even foresees a voluntary dispute resolution process between advertisers.

Recently, two high profile entities brought their dispute in front of the NAD. The maker of Gatorade, Stokely-Van Camp, Inc., challenged statements in advertising made by the maker of BodyArmor SuperDrink and BodyArmor Lyte sports drinks, BodyArmor Nutrition, LLC. In Particular, Gatorade challenged the truthfulness of BodyArmor’s advertising statements that it is “The Only Sports Drink.” Additionally, Gatorade challenged two videos BodyArmor posted on social media and certain press kits created by BodyArmor that compared certain of its products to Gatorarde’s.

As to the phrase “The Only Sports Drink,” the NAD determined that, although in different contexts such a statement may be considered puffery (i.e. “sales talk”), the way in which the phrase was placed—preceding descriptions of the drinks as containing no artificial sweeteners or being low calorie—implied that no other sports drink was low in calories or contained no artificial sweeteners. As a result, the NAD recommended that BodyArmor discontinue using the advertising term in such a way.

As to the comparison posts and press kits, however, the NAD determined that such comparisons constituted fair advertising. Of particular concern with the comparisons, which compared only select drinks, was whether a consumer would see those comparisons and broadly extrapolate them to all Gatorade products. The NAD determined that a consumer viewing these advertisements would likely not view them in a broad context, but would limit the comparison to the products put forth in the advertisements.

To read more about the National Advertising Division and the tasks it undertakes, visit https://bbbprograms.org/programs/all-programs/national-advertising-division.

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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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