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14 August 2023

NAD Reads Into Emojis

KD
Kelley Drye & Warren LLP

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Kelley Drye & Warren LLP is an AmLaw 200, Chambers ranked, full-service law firm of more than 350 attorneys and other professionals. For more than 180 years, Kelley Drye has provided legal counsel carefully connected to our client’s business strategies and has measured success by the real value we create.
Earlier this year, Coca-Cola reformulated its Powerade beverage to include more electrolytes. In some ads, it boasted that the beverage now contained "50%...
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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. ??

Stokely-Van Camp, the maker of Gatorade, wasn't happy. ?? Although the claims about electrolyte content were literally true, SVC argued that the ads implied that Powerade "delivers superior heath, hydration, and performance benefits and through the flexed arm emoji, that drinking Powerade will make consumers stronger than Gatorade." Despite this implication, SVC argued that Coca-Cola hadn't provided evidence that the increase in electrolytes actually provides additional benefits for consumers.

NAD determined that "50% more" is a "powerful term" that "flags a significant difference" and could lead to high consumer expectations. In this case, the increase in Powerade's electrolyte content represents only a 3% increase and a 2% increase in the daily values for sodium and potassium, respectively. "As such, although literally true, NAD determined that Coca-Cola's '50% More' claims mischaracterize the significance of the electrolyte increase and the nutrient difference" and could confuse consumers. ??

What about the flexed arm emoji? ?? SVC argued that it "conveyed the additional message that consumers who drink Powerade will be stronger than if they drink Gatorade." Coca-Cola counted that the flexed arm emoji is "a common symbol for determination and persistence and that Gatorade employs the same emoji in its advertising for similar purpose." As such, it reasoned that consumers aren't likely to see that and think that they're going to get stronger.

NAD noted that emojis "are a powerful source of messaging" that can add meaning to an ad. NAD acknowledged that the flexed arm emoji could stand for "determination and persistence," but noted emojis can often convey multiple meanings. Consulting Emojipedia, NAD wrote that "a flexed arm emoji evoking the arm of a body builder can reasonably convey a message of strength and fortitude." Thus, it could suggest Powerade helps make you stronger than Gatorade does. ??

This decision has broad implications for many ad campaigns. The ideas that companies can't make claims that are literally true and that common emojis can convey claims that require substantiation may surprise many advertisers. ?? Coca-Cola plans to appeal the decision, so we'll need to wait to see whether the NARB reads as much into Powerade's claims and emojis as NAD did. In the meantime, you can read about other cases dealing with emojis here and here.

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