April 13, 2023
Emojis Can Communicate "Clear Messages"
BA Sports Nutrition's advertisement
In 2021, NAD broke new ground by reviewing an ad by BA Sports Nutrition promoting its Body Armor sports drink.
BA Sports Nutrition designed the Body Armor ad to feature Baker Mayfield (then the Cleveland Browns quarterback and former Heisman Trophy winner) as an endorser who would be shown in a humorous “taste test” video favoring Body Armor and disfavoring Gatorade's Orange Thirst Quencher drink, a competing product.
The ad was supposed to be puffery, not an actionable ad claim.
In the "taste test," Mayfield was blindfolded and sampled three flavors of Body Armor which he identified quickly and indicated his approval.
Mayfield was then handed a fourth bottle which clearly contained Gatorade (unknown to Mayfield).
Mayfield sipped the fourth bottle and exclaimed, “yo this is not cool. That is awful.”
When Mayfield removed the blindfold, he spits out the Gatorade and a green “Nauseated Face” emoji and a “Tears of Joy” emoji appeared together prominently on the screen.
The effect the “Nauseated Face” emoji communicated was that something was gross, while the "Tears of Joy" emoji conveyed a reaction to the joke played on Mayfield.
Why NAD found the emojis to be ad claims that falsely disparaged gatorade
NAD found that the ad falsely disparaged the Gatorade drink.
NAD determined that the ad made a clear disparaging statement that Gatorade is nauseating or undrinkable.
NAD determined that the messaging related to the emojis was not puffery.
If you would like to know more about the fine line between puffery and ad claims, visit How to Write Ads With Puffery That Are Legal (+ Puffery Examples): Your Complete Ads With Puffery Marketing Guide.
NAD found that emojis are not merely subjective because they can communicate “clear messages” in some contexts.
Specifically, in this case, the emojis communicated that the Gatorade was nauseating.
Bottom line, NAD found that the emojis created a claim of false disparagement.
Emojis can be merely suggestive and, thereby merely puffery.
On the other hand, emojis can be more than just suggestive; they can rise to the level of false statements, which can result in actionable claims of false disparagement.