There’s a long tradition of upstart brands taking on established brands in their advertising: it’s a way of getting attention and of trying to simultaneously show both similarity with and difference from the better-known brand. Sometimes, though, the upstart brand goes too far, comparing itself to — and distinguishing itself from —- the established brand in ways it cannot substantiate.
A recent case at NAD is a good example. That case involved advertising for BodyArmor Sports Drink, a new-ish addition to the sports drink category. It created tv spots and other ads claiming that BodyArmor is "a better sports drink," is "more natural," provides "better hydration" and that the long established Gatorade brand is "outdated."
Stokely-Van Camp (Gatorade) challenged the ads, its third case against BodyArmor at NAD. (Full disclosure: I have represented Gatorade in all of these cases). While BodyArmor argued that its statements were either puffery or adequately supported, NAD disagreed.
First, BodyArmor argued that because it had replaced some the artificial ingredients found in some Gatorade products with natural ingredients, BodyArmor is "more natural" than Gatorade. However, NAD found that "the record [did] not contain any analysis or evidence demonstrating that BA products contain more natural ingredients – either by quantity or volume – than other comparable products."
With respect to BodyArmor's "More Natural Better Sports Drink" claim, which BodyArmor argued constituted puffery, NAD found that BodyArmor’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." Indeed, by stating that it has "more" natural ingredients, an objective, measurable attribute, and tying that to the claim of being a "better sports drink," BodyArmor was making a real superiority claim, one which it did not substantiate.
Similarly, NAD found that BodyArmor's "better hydration" statement, made in conjunction with its "more natural" statement, conveyed a specific objective claim that the beverage provides better hydration than its competitors because it contains more natural ingredients, also a claim that BodyArmor did not substantiate.
Finally, NAD found that, notwithstanding the humorous presentation of its claims, BodyArmor unduly denigrated Gatorade by characterizing it as "outdated."
Thus, NAD recommended that BodyArmor discontinue its "More Natural Better Sports Drink," "More Natural Better Hydration" and "More natural, more electrolytes. Better sports drink" claims. NAD further recommended that the advertiser modify the challenged commercials to avoid conveying the message that Gatorade is inferior or "outdated."
Once again, BA has decided not to comply with NAD’s Decision, preferring a referral to the FTC. What happens next remains to be seen but one thing we do know is that the FTC won’t ignore it.
The National Advertising Division has referred advertising claims made by BA Sports Nutrition, LLC, for its Bodyarmor SuperDrink in point-of-sale, online, and television advertising to the Federal Trade Commission for review after the company declined to comply with NAD’s recommendations to modify or discontinue certain claims.