By Linda A. Goldstein and Amy Ralph Mudge, of Baker & Hostetler LLP
Snark
The concept of Body Armor Sports Drink’s television ad campaign was that competitor Gatorade was old news, outdated, kaput, finis. The hook for each commercial was a famous sports figure – NBA MVP James Harden, Angels center fielder Mike Trout, WNBA Point Guard Skylar Diggins-Smith, to name three – doing something in an archaic fashion. Harden, for instance, walks toward the court in elaborate Revolutionary War regalia, accompanied by a military drummer. Trout is seen comically shaking in the frantic embrace of an old-fashioned, fat-melting “jiggle machine.” Not to be outdone, an 80s style hair-crimped Diggins-Smith runs a throwback aerobics class.
Poking the Gator
“This is ridiculous,” says Diggins-Smith into the camera as the workout music comes to an abrupt halt. “Yes, it is,” intones the announcer. “But not as ridiculous as an outdated sports drink. This is Body Armor, more natural, more electrolytes, better sports drink. Thanks Gatorade – we’ll take it from here.”
Ouch.
(Diggins-Smith hit Gatorade with a further indignity by simply appearing in the ad – she is a former high school “Gatorade Female Athlete of the Year,” after all.)
There was no way a slam like this would go unanswered, and Gatorade responded by taking these and other ads before the National Advertising Division. The company claimed that the Body Armor TV ads were falsely denigrating and conveyed a false and misleading superiority claim against its iconic flagship brand. The petition also took aim at claims in other Body Armor ads, including assertions that Body Armor is a “better sports drink,” is “more natural” and provides “better hydration.”
The Takeaway
NAD issued a ruling on the claims in November 2018, and the results weren’t good for Body Armor.
In the case of the “more natural better sports drink” claim, the Division pointed out that the tagline was placed in close proximity to a list of product features including natural ingredients. This proximity effectively “tethered” the claim to the number of natural ingredients and attributes. Because this relationship was established, NAD maintained, Body Armor needed – and failed – to produce evidence that Body Armor products contained more natural ingredients than other beverages.
According to NAD, the “more natural” tagline similarly felled the hydration claims by association, again because Body Armor failed to provide evidence that it offered better hydration because of its natural ingredients.
Those claims dispensed, the Division turned to the television spots. While it disagreed that Body Armor had falsely denigrated Gatorade in the commercials, it did hold that the commercials conveyed superiority.
NAD recommended that Body Armor discontinue the “More Natural Better” drink and hydration claims and edit the TV advertisements so that they did not imply Gatorade’s inferiority.
Appropriately thick-skinned, Body Armor brushed off the Division’s holdings and refused to comply with its recommendations. The claims are now being forwarded by the NAD to the Federal Trade Commission for further review.
