Bodyarmor Rejects NAD’s ‘Upgrade’ Claim Critique
This article was originally published in The Tan Sheet
Executive Summary
Gatorade sports drinks Stokely-Van Camp challenged that Bodyarmor Nutrition was noncompliant with NAD’s April 2014 finding that its ads combined claims that are supported individually in such a way that they created unsupported comparative claims
Bodyarmor Nutrition LLC will not defend its “upgrade your sports drink” claim to the National Advertising Division, but will “in the marketplace and in forums where it would have full due process rights.”
In a statement released Oct. 20, NAD said it referred its review of Bodyarmor SuperDrink ad claims to the Federal Trade Commission after the firm declined to participate in a review by the Council of Better Business Bureaus industry self-regulation arm.
Stokely-Van Camp Inc., maker of Gatorade sports drinks, challenged that Bodyarmor, a business of BA Sports Nutrition Inc., was noncompliant with NAD’s April 2014 finding that its ads combined claims that are supported individually in such a way that they created unsupported comparative claims (Also see "In Brief: Abbott Sales Down, Herbalife Investigated, GMO Labeling Legislation, NAD Reviews, FDA Warning Letters" - Pink Sheet, 21 Apr, 2014.).
According to NAD, Bodyarmor contended that the message of “upgrade your sports drink” was not a violation of the April decision, but conveyed the product’s “excellence or high quality.” The Beverly Hills, Calif., firm argued the claim was not at issue in NAD’s initial decision and was not appropriate for review in a compliance proceeding.
“The company contended that its electrolyte-rich formula is in fact an ‘upgrade’ over Gatorade’s formula and said it was prepared to defend its advertising and formulation in the marketplace and in forums where it would have full due process rights,” according to NAD’s statement.
However, NAD says the “upgrade” message conveyed an “unsupported comparative superiority claim and was well within NAD’s purview in a compliance proceeding.” NAD recommended the “upgrade” claim – as it appeared on packaging, the firm’s website and in testimonials from professional athletes – be discontinued or modified to comply with NAD’s underlying decision.
The CBBB division also reported Bodyarmor “detailed its efforts to bring advertising into compliance” with NAD’s recommendation that the firm discontinue or modify its “superior nutrition + hydration” and “2½X electrolytes” claims to avoid implication of superior hydration due to the inclusion of two and one-half times the electrolytes of Gatorade.
Chicago-based Stokely-Van Camp, a PepsiCo Inc. subsidiary, contended that Bodyarmor’s “upgrade” claim continues “to convey the unsupported message that [SuperDrink] is superior” to Gatorade, “contrary to NAD’s recommendation that such claims be discontinued,” according to NAD’s statement.
NAD refers cases to FTC when a firm declines to provide supporting evidence in a review of its claims or rejects the organization’s recommendations to change or eliminate certain ad claims. FTC prioritizes investigating the referrals but expects firms will reconsider and participate in NAD’s review process.
Firms making claims faulted by NAD or the CBBB’s Electronic Retailing Self-Regulation Program can appeal the decisions to the organization’s National Advertising Review Board.
Like Bodyarmor, other firms have complained that reviews by NAD and ERSP are unfair and favor companies that challenge competitors’ ads. Additionally, some firms making challenged claims argue that their advertising does not compare their products to the challengers’ products (Also see "Summers Blasts NAD “Secret Rules” After J&J Ointment Claim Challenge" - Pink Sheet, 11 Feb, 2013.).