Earlier this year, Coca-Cola reformulated its Powerade beverage to include more electrolytes. In some ads, it boasted that the beverage now contained "50% more electrolytes vs. Gatorade Thirst Quencher." One social media post featured a headline "Powerade vs. Gatorade Thirst Quencher" above a side-by-side comparison of the electrolyte and vitamin content of the two beverages. The caption read: "Don't Underestimate our Electrolytes" followed by a flexed arm emoji. 💪
Although the claims about electrolyte content were literally true, Stokely-Van Camp – the maker of Gatorade – argued that the ads were misleading. Among other things, SVC argued that the emoji conveyed a "message that consumers who drink Powerade will be stronger than if they drink Gatorade." In a decision that we noted could have broad implications for many ad campaigns, NAD stated that emojis could be "a powerful source of messaging" and agreed with SVC's interpretation.
This week, the National Advertising Review Board (or "NARB") announced that it disagreed with NAD's conclusion that the emoji conveyed a strength claim. The decision states that "the panel does not find that the strong-arm emoji in the context of the comparative post communicates a superiority claim but merely draws attention to the fact that Powerade has increased its electrolytes, which are the core beneficial ingredients in any sports drink."
(The panel also disagreed with NAD's conclusion that Powerade's electrolyte claims on labels were misleading but agreed with other parts of the NAD decision.)
Although there are certainly instances in which the use of an emoji may convey a claim, advertisers can breathe a little easier knowing that those instances may not be as many as the original NAD decision suggested. Nevertheless, advertisers should pay attention as this area of the law develops. In the meantime, you can read about other cases dealing with emojis here and here. And you can read more about the NARB's decision here.
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