BodyArmor Not ‘Only Sports Drink’ After Gatorade Challenge, Keeps ‘Reconsider’ Choice Suggestion
Executive Summary
NAD concludes using “Only Sports Drink” above descriptions of BodyArmor drinks in less prominent text misleadingly implies the products alone have no artificial sweeteners, flavors or dyes or have “potassium packed electrolytes.” Industry self-regulation group rejects Gatorade challenges that BodyArmor social media videos made false and misleading comparisons between the sports drink lines.
The latest advertising dispute between the makers of the BodyArmor and Gatorade brands reflects not only competition in the sports drink market but also that consumer product firms are focusing more on digital channels, including short videos, than on print or broadcast to make ad claims.
A recent report following a review by BBB National Programs Inc.’s National Advertising Division of Gatorade maker Stokely-Van Camp Inc.’s challenge of BA Sports Nutrition LLC’s ad claims comparing the brands discusses primarily website and social media claims along with a brief mention of an in-store display.
The report published on 29 September follows the third NAD review of a Stokely-Van Camp challenge of ad claims for BodyArmor since 2014. While the previous reviews agreed with the Gatorade marketer’s challenges, the latest largely rejects its challenges and concludes that BA Sports isn’t making false or misleading claims.
NAD attorneys concluded in their review that by using the statement “The Only Sports Drink” above descriptions of its drinks printed in less prominent text, BA Sports misleadingly implies that its products alone, in SuperDrink and Lyte formulations, and no competing products have no artificial sweeteners, flavors or dyes or have “potassium packed electrolytes.”
Whitestone, NY-based BA Sports, which used the claim on multiple pages of its website and on in-store displays, contended “Only Sports Drink” is puffery and doesn’t signal the claims that follow it are stated as a comparison to other brands.
BA SPORTS VIDEOS ON SOCIAL MEDIA INCLUDED SIDE-BY-SIDES IMAGES OF BODYAROMRO AND GATORADE PRODUCTS WITH AND WITHOUT ATTRIBUTES OF THEIR FORMULATIONS.
PepsiCo Inc. subsidiary Stokely Van-Camp, on the other hand, stated that while the “only” claim “is obviously untrue, it appears in a context where consumers will reasonably take away a message that BodyArmor is the only sports drink with the listed attributes.”
NAD attorneys granted BA Sports that its “only” claim “standing alone may be puffery,” but said the use of the word in the ads “conveys a message of exclusivity that is informed by the text” of product attributes that follows.
With BA Sports providing no consumer surveys or other research to support its argument, the attorneys based their conclusion about “messages reasonably conveyed” on their own takeaways.
“Although the advertising does not expressly state [BodyArmor drinks] are the only sports drinks ‘with’ those attributes, consumers will reasonably understand that the word ‘with’ is implied so that the message is that BodyArmor drinks are the only sports drinks possessing those attributes,” they stated.
Video Brevity Risky But Not Confusing
The attorneys rejected Chicago-based Stokely-Van Camp’s challenges that videos BA Sports posted on social media and material it provided its paid brand influencers made false and misleading comparisons between the two sports drink lines.
Separate 9-second videos for BodyArmor SuperDrink and Lyte beverages started with three frames showing BodyArmor and Gatorade bottles side by side: the first in each video shows only the products and the second and third make comparisons about the products’ formulations. The remainder of each video shows only BodyArmor products above the line’s attributes.
Not Brands' First Rodeo
This review not only largely landed in agreement with BA Sports, it also relieves NAD attorneys of referring their findings to the Federal Trade Commission due to the firm rejecting their recommendations.
In 2018, NAD attorneys reported that BA Sports shunned their recommendation to discontinue or modify unsupported ad claims suggesting Gatorade is “outdated” and that BodyArmor SuperDrink is superior. (Also see "BodyArmor Rejects NAD Ad Claims Decision Following Gatorade Challenge" - HBW Insight, 21 Nov, 2018.)
They also referred to the FTC their concerns about BodyAmor claims in 2014 following a Stokely-Van Camp challenge. After finding that BA Sports didn’t support claims comparing the brands, NAD attorneys asked BA Sports to submit support showing that a subsequent claim, “upgrade your sports drink,” also wasn’t unsupported. The firm declined to provide evidence but said it will “in the marketplace and in forums where it would have full due process rights.” (Also see "Bodyarmor Rejects NAD’s ‘Upgrade’ Claim Critique" - HBW Insight, 27 Oct, 2014.)
The FTC hasn’t reported any enforcement against BA Sports referencing false and misleading claims for its sports drinks.
NAD commonly submits to FTC its reviews after a firm rejects its recommendations to halt or modify ad claims or refuses to provide evidence to support its advertising. The agency, which has regulatory oversight of advertising for nutritional and other consumer products, is not compelled to investigate NAD's referrals, but says it prioritizes them and expects that firms will reconsider and opt to cooperate in the industry self-regulation process. The agency also might find that the challenged advertising does not warrant an investigation.
Stokely-Van Camp asserted that consumers would reasonably understand the claims referencing only the BodyArmor products in the second half of each video to state “not only to what is contained in BodyArmor, but what is not contained in Gatorade.”
NAD attorneys suggested BA Sports ran a risk of conflating the comparisons between the products in the early frames and the nomadic claims about BodyArmor drinks in the latter frames.
“Although the short social media videos moved quickly and all claims therein are necessarily in close proximity to one another, the specific comparisons were set apart in a different frame that compared a single variant of each product. This comparison is distinct from the monadic claims that follow,” they said.
They added that “there is certainly a potential that monadic claims can be transformed into comparative claims,” but the elements in the videos “weighed against a determination that the videos were entirely comparative.”
The challenged social media posts by BA Sports’ paid influencers were from the firm’s “Dare to Compare” campaign, according to the NAD report. The brand’s athlete influencers posted on their social media accounts images of materials provided by the firm, including some comparisons also made in the challenged social media videos.
The materials, distributed by BA Sports in a “press kit,” featured text including “What does your sports drink say about you?” and “You are what you drink…right? Well, then, what does your sports drink say about you? Which one would you choose?” Also included is a chart comparing attributes of BodyArmor and Gatorade formulations, featuring images of the products with “Would you like to reconsider?” printed at the top and “Just stating the facts…” at the bottom.
Like the challenged social media videos, Stokely-Van Camp argued the influencers’ social media posts of BodyArmor’s claims could confuse consumers “because the comparisons jump back and forth between comparisons of two specific flavors and a broader comparison between two brands.”
It also contended that some of the differences BA Sports implies in the “Dare to Compare” material as “negative attributes of Gatorade actually have a direct positive bearing on Gatorade’s effectiveness as a sports drink.” The NAD report notes an example of BA Sports’ material highlighting that BodyArmor products contain less sodium than the Gatorade products, but “sodium is a necessary component of a sports drink and having less is not a benefit.”
NAD attorneys agreed with BA Sports, though, that the press kit materials posted by BodyArmor “serve as an invitation to consumers to consider BodyArmor’s products by providing truthful and non-misleading information about the ingredients in its products and two particular flavors of Gatorade.”
In its statement included in the report, BA Sports described NAD attorneys’ decision as confirmation that the challenged “advertising was intended to make truthful and accurate comparisons between specific flavors” of the competing brands. It is “is pleased that NAD agreed that BodyArmor’s advertising achieved that goal,” the firm stated.
BA Sports also said it would comply with NAD attorneys’ recommendation to discontinue the challenged “Only Sports Drink” ad on its website and on in-store displays, but noted NAD attorneys recognized the claim “may be puffery in certain contexts.”