NAD Refers Advertising Claims by BA Sports Nutrition to FTC for Further Review After Company Declines to Comply with NAD Recommendations

New York, NY – Nov. 14, 2018 – 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.

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus. The claims at issue were challenged by Stokely-Van Camp, Inc., the maker of Gatorade sports drinks, and included:

  • BodyArmor is “a better sports drink”
  • BodyArmor is “more natural”
  • BodyArmor provides “better hydration” and “superior hydration”
  • Gatorade is “outdated”

NAD also considered whether the challenged advertising implied that having “more electrolytes” or being “more natural” makes BodyArmor a better sports drink or whether athletes perform better if they drink BodyArmor rather than Gatorade.

NAD considered the messages reasonably conveyed by the challenged claims and whether the claims were supported by the evidence.

Regarding the “More Natural Better Sports Drink” claim, NAD noted in its decision that the claim – in one version of the advertising – appears alongside pictures of the product and a list of product features that include natural flavors and sweeteners, coconut water, and potassium packed electrolytes. By presenting the claim in this context, NAD said, the advertiser “tethered its ‘Better Sports Drink’ claim to objective characteristic – the amount of natural ingredients in the formula  and a list of objectively provable product attributes – that distinguish it from other sports drinks, conveying to consumers that because of these attributes BA is highlighting, it is a better sports drink than others on the market.”

NAD noted that the evidence in 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. Additionally, BA did not provide evidence that the inclusion of the specific natural ingredients used in its product makes it a better sports drink than anything else on the market

Turning to the “More Natural Better Hydration” claim, NAD found that “BA’s chosen formula and the inclusion of ingredients like coconut water and potassium is premised on their scientifically validated roles in aiding rehydration. It would be reasonable for consumers to believe that the claim ‘better hydration’ to be an objective claim about a product characteristic, especially when made in conjunction with an objective ‘more natural’ claim.” The record, however, lacked any evidence establishing that BA provides better hydration than its competitors because it contains more natural ingredients.

Finally, NAD reviewed television commercials that featured professional athletes making “outdated” choices in an amusing way – sending a letter by carrier pigeon, for example – and a voiceover that states: “Why would [famous athlete] choose an outdated sports drink?…He wouldn’t!…More natural, more electrolytes, better sports drink. Thanks Gatorade, we’ll take it from here.”

The challenger argued that the ads were falsely denigrating and contended that the statement “Thanks Gatorade, We’ll Take It From Here” conveyed a false and misleading comparative superiority claim against its product. The advertiser, on the other hand, argued that these commercials were essentially puffery, and the vignettes were humorous exaggerations or over-the-top hyperbole.

NAD wasn’t convinced the individual vignettes were falsely denigrating, but determined that the commercials convey a message that BodyArmor is not just a newer sports drink, but a better sports drink than Gatorade.

Following its review of the evidence in the record, NAD recommended that the advertiser discontinue its “More Natural Better Sports Drink” and “More Natural Better Hydration” claims. NAD further recommended that the advertiser modify the challenged commercials to avoid conveying the message that Gatorade is inferior or “outdated.” NAD also recommended that the advertiser discontinue the claim, “More natural, more electrolytes. Better sports drink.”

Bodyarmor, in its advertiser’s statement, said it disagreed with NAD’s findings and would not comply with NAD’s recommendations. Considering the advertiser’s decision, NAD has referred the matter to the attention of the appropriate government agency for possible enforcement action.

Note: A recommendation by NAD to modify or discontinue a claim is not a finding of wrongdoing and an advertiser’s voluntary discontinuance or modification of claims should not be construed as an admission of impropriety. It is the policy of NAD not to endorse any company, product, or service. Decisions finding that advertising claims have been substantiated should not be construed as endorsements.