Emojis communicate clear messages in advertising


In two recent decisions, the National Advertising Division (NAD) of the BBB’s National Programs reviewed the use of emojis in advertising and found in at least one instance that emojis could make expressly derogatory statements.

A global study of 7,000 emoji users conducted by Adobe in 2021 found that more than half of respondents are likely to open a brand’s emails or push notifications if they contain emojis. Over 40% of the sample said they were more likely to buy products advertised using emojis. Younger consumers also prefer customer support teams that use emojis in chat or email, Inc Magazine. But recent NAD rulings show that brands need to be judicious with their use of emojis — or, at least, stop to consider what statement those emojis can make on their behalf.

In a first impression case, the NAD reviewed a social media video of BA Sports Nutrition, which produces the BodyArmor sports drink. It was shared by BA Sports Nutrition and by Baker Mayfield, Cleveland Browns quarterback and BodyArmor endorser. In a “blind taste test” video, Mayfield tastes and recognizes three BodyArmor flavors before being given an orange drink that NAD said was “clearly” Orange Thirst Quencher from Gatorade. When Mayfield tastes the Gatorade, the “nauseous face” and “face with tears of joy” emojis appear on the video as he says the drink is “awful”.

The NAD found that the video falsely disparaged Gatorade. Considering and in turn rejecting BA Sports Nutrition’s arguments, the NAD said that emojis are not merely subjective; they can communicate “clear messages” in certain contexts. In Baker Mayfield’s video, since Gatorade is identifiable, the pair of emojis contributed to a “severely negative statement” that called Gatorade (among other things) foul.

Then the NAD said the video went beyond mere buffoonery. Although Baker Mayfield’s video was intended to be humorous, it still reasonably conveyed an express message about a competitor. Since the express claim was provable, it required substantiation which BA Sports Nutrition had not provided. The NAD recommended dropping four express claims: 1) Gatorade is “awful,” 2) drinking it is “uncool,” 3) it’s smelly, and 4) people spit it out after drinking it. drank. The third claim, a statement that Gatorade is foul smelling, comes solely from BA Sports Nutrition’s use of emoji. This case is the first in which the use of emoji has given rise to an express allegation of false disparagement. The ruling warns advertisers that emojis are more than just suggestive; these are statements that can be qualified as false statements.

The NAD announced its BodyArmor decision in a press release that addressed another case involving the use of emojis in videos posted on a brand owner’s social media page. But that case, brought by The Procter & Gamble Company against Art of Sport Group, Inc., ended before it started. Art of Sport has “voluntarily” and “permanently” discontinued its use of a pair of short cartoon videos in which two canisters of deodorant battle it out at Olympic events. In the videos, a deodorant canister with Art of Sport’s trade dress outperforms another deodorant canister, which Procter & Gamble said “undoubtedly” represented its Old Spice deodorant.

Although the NAD did not review the merits of Procter & Gamble’s complaint, for compliance purposes it noted that it would treat the claim as if it were recommending the claims be dropped by Art of Sport. and Art of Sport complied. While the NAD hasn’t actually ruled on the Art of Sport claim, its emoji rulings are nonetheless instructive.

The NAD issued both rulings using its Single Well-defined Issue Fast-Track (SWIFT) program, under which disputants can bring ad disputes that don’t require reviewing complex evidence or justifications. The advantage of this program – the rapid resolution of disputes – can also pose problems for advertisers. Program decision makers limit their analysis to a single issue and consider only one substantive submission from each party.

Further analysis of emojis in advertising will likely follow in other cases, but the NAD has made it clear in these recent decisions that context is important in determining whether emoji use is sufficient to make a claim. Advertisers looking to use emojis in new or innovative ways should be careful not to make verifiable and substantiated claims when doing so.


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