NAD Refers BodyArmor Claims to FTC After Review

Advertising Law

After BA Sports Nutrition declined to comply with the National Advertising Division’s (NAD) recommendations to modify or discontinue certain ad claims for its BodyArmor SuperDrink, the self-regulatory body referred the claims to the Federal Trade Commission for review.

Competitor Stokely-VanCamp, Inc., the maker of Gatorade, challenged claims made in point-of-sale, online and television advertising for BodyArmor sports drink, including that BodyArmor is “a better sports drink,” provides “better hydration” and “superior hydration,” and is “more natural,” and that Gatorade is “outdated.”

The challenger told the NAD that the claims falsely denigrated its product and lacked support. The advertiser countered that the claims were either truthful and substantiated or constituted permissible puffery.

Reviewing the net impression created by the advertisements as a whole—and not the words or phrases standing alone—the self-regulatory body first determined that the “more natural” claim conveyed a message of comparative superiority.

In rejecting BA Sports’ argument that consumers would understand the claim as the advertiser’s opinion, “NAD noted in numerous decisions that comparative language, such as the term ‘better,’ is expressly comparative, even without an express specific reference to a competitor.”

“BA’s argument that its combination of natural ingredients and electrolytes sets it apart from other sports drink belies its contradictory argument that consumers will not take away a message about the product’s comparative superiority to other sports drinks,” the NAD wrote. “Notably, BA is not stating a subjective opinion about its ingredients—for example, it is not saying that it has ‘better’ natural ingredients, a claim that would be subjective and open to interpretation. Rather, the advertiser is saying that it has ‘more’ natural [ingredients], an objective, measurable attribute, which it tied to its ‘better sports drink’ claim.”

The advertiser drove home this message by tying the “better sports drink” to attributes of BodyArmor, placing the phrase alongside pictures of the product and a list of features (such as natural flavors and potassium-packed electrolytes). “By presenting the claim in this context, BA has tethered its ‘Better Sports Drink’ claim to an objective characteristic … conveying to consumers that because of the benefits BA is highlighting, it is a better sports drink than others on the market.”

As the record did not contain any analysis or evidence demonstrating that BA’s sports drink contains more natural ingredients than comparable products or that the inclusion of specific natural ingredients used in its product makes it a better sports drink, the NAD recommended the claim be discontinued. The self-regulatory body reached a similar conclusion with regard to the “better hydration” claim.

The maker of Gatorade also challenged a series of BA’s television commercials that featured different professional athletes making some sort of outdated choice (sending a letter via carrier pigeon, for example, or wearing 18th-century clothing to play basketball in). A voiceover asks, “Why would [famous athlete] choose an outdated sports drink? He wouldn’t! More natural, more electrolytes, better sports drink. Thanks, Gatorade, we’ll take it from here.”

While unconvinced by the challenger’s position that the ads themselves were falsely denigrating, the NAD found that the “contexts of the commercials convey a message that BodyArmor is not just a newer sports drink, but a better sports drink than Gatorade.” NAD determined that when the advertisements are viewed as a whole, “one reasonable consumer takeaway from these commercials is that BA is a better sports drink than its competitors, specifically Gatorade, because it has more natural ingredients and more electrolytes, a claim unsupported by the record.”

Further, the advertiser failed to provide any objective evidence that Gatorade meets the definition of “outdated.” Gatorade’s “formula may [have] been created decades ago, but it remains a current market leader,” the NAD wrote.

In its advertiser’s statement, BA said it disagreed with the NAD “that its humorous television commercials featuring celebrities in outdated vignettes are likely to deceive consumers of sports drinks,” as well as the holding that the other challenged claims conveyed objectively unsupported messages. “BodyArmor therefore declines to discontinue these ads and declines to participate further in the NAD process,” the advertiser said.

To read the NAD’s press release about the decision, click here.

Why it matters: In light of the advertiser’s decision not to comply with the self-regulatory body’s recommendations, “NAD has no other choice but to refer the matter to the attention of the appropriate government agency for possible enforcement action.”