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 relating to intertwined express claims identified by Stokely. NAD stated: “The single issue is the Advertiser’s alleged disparagement of Gatorade and whether any unsupported messages about Gatorade are reasonably conveyed through express statements and images in the video.”
Upon determining that the challenge was appropriate for Fast-Track SWIFT resolution, NAD addressed the claims at issue. Stokely sought review of four express claims in the video: (1) Gatorade is “awful”; (2) having to drink Gatorade is “not cool”; (3) Gatorade is nauseating (as depicted by the nauseated emoji); and (4) people spit Gatorade out after drinking it. Stokely argued that the video falsely disparaged Gatorade. BodyArmor argued that the video is merely a “social media joke” and not truly an advertisement; the video is not making any claims concerning BodyArmor or Gatorade; Mr. Mayfield is simply stating his personal opinion; and Mr. Mayfield’s physical reactions in the video are obvious hyperbole (i.e., puffery) for which viewers do not expect substantiation.
NAD disagreed with BodyArmor’s arguments, finding that the video conveyed a negative message about Gatorade by express statements and imagery. NAD concluded that the express statements that Gatorade “is not cool” and “That’s awful” are unmistakable negative references to Gatorade. NAD determined that the video’s express message that Gatorade is undesirable is emphasized by Mr. Mayfield’s reacting physically by spitting out Gatorade and otherwise conveying his displeasure through body language.
BodyArmor argued that emojis are inherently subjective and open to different interpretations. NAD disagreed, stating that “Emojis … frequently substitute for the written word in contemporary communications and some Emojis more clearly communicate feelings or emotions than others.” A nauseated face emoji “communicates a clear message that something is gross,” especially when it is used with verbal statements expressing disgust with a competing product, as in the video.
NAD also disagreed with BodyArmor’s argument that the video is humorous and simply a “social media joke.” NAD stated that exaggerated images and humor can be used in advertising to emphasize a message, provided that the underlying message is truthful. However, humor cannot be used to express a false message.
Because BodyArmor did not have any substantiation for the messages about Gatorade, NAD recommended that it discontinue the claims made in the video that Gatorade is “awful,” having to drink Gatorade is “not cool,” Gatorade is nauseating (as depicted by the nauseated emoji), and people spit Gatorade out after drinking it.
The increasing use of social media videos to market products means that there will be an increased focus on whether images in those videos convey misleading messages. Emojis and other images in videos can convey expressly false claims, as NAD found in this case. This was a case of first impression and will certainly be followed by many others raising similar issues.