Emojis are Worth A Thousand Words
My 14 year old once told me the best way to communicate with someone is by using an emoji. As an English major, this sentiment is of course worrying but as an advertising lawyer, her comments are closer to the truth of advertising than they used to be.
Take this recent case where the National Advertising Division (“NAD”), one of the advertising industry’s self-regulatory agencies, and part of BBB National Programs, considered whether the use of an emoji actually constituted an advertising claim.
In a short video posted on social media for BodyArmor sports drink, Baker Mayfield of the Cleveland Browns and a BodyArmor endorser took a blind “taste test” where he was asked to identify several BodyArmor flavor drinks. He correctly identifies the first three flavors. The fourth bottle that he’s given is none other than competitor Gatorade’s Orange Thirst Quencher sports drink. After his first sip, the green, nauseated emoji appears prominently on the screen. Mr. Mayfield then says “Yo, that is not cool. That’s awful,” and he proceeded to spit it out. Further, on his social media channels, the video is captioned “I’m not sure I’ll ever forgive you for this.”
Pictures (or emojis) are worth a thousand words. Or in this case, a lengthy complaint by Stokely-Van Camp, makers of Gatorade. They argued to NAD that the ad was falsely disparaging but BodyArmor argument was that the ad made no express claims whatsoever, that the emoji was merely an implied claim (and therefore not appropriate to be argued in the NAD process, to begin with).
NAD disagreed and processed the claim through its Fast-Track SWIFT resolution process. Stokely-Van Camp asked NAD to review four express claims in the ad: that Gatorade was “awful”, that drinking Gatorade was “not cool”; Gatorade will make you nauseous (little green emoji), and that people spit Gatorade out after drinking it. BodyArmor defended their video stating that it was a “joke”, not an ad, that it wasn’t making real claims pertaining to either product and that Mr. Mayfield was merely stating his opinion. His physical reaction -ie: spitting – was in fact, just puffery where substantiation is not required.
Unhappy Face Emoji said NAD. Not so fast. According to the ruling, the video did in fact convey negative messaging – “not cool” and “awful” - about the product with not just express statements but the imagery, such as the emoji. Further, Mr. Mayfield’s spitting out of the Gatorade was unmistakably negative. BodyArmor argued that the emoji could be interpreted in different ways, rather than conveying any clear message but NAD disagreed stating, “Emojis … frequently substitute for the written word in contemporary communications and some Emojis more clearly communicate feelings or emotions than others.” A green nauseated face is hardly up for interpretation.
Another excellent point by the NAD, one that applies universally to advertising, is that humor can emphasize the underlying message but it cannot be used to express a false message. BodyArmor was not able to substantiate its messages about Gatorade and therefore, NAD recommended that the ad be discontinued. Sad Face Emoji for BodyArmor.
Why This Matters: This was the first time a case involving an emoji as an advertising claim came before the National Advertising Division. It won’t be the last as we continue to use this kind of communication to, well, communicate. Social media video is one of the most popular marketing tools, which naturally lends itself to the use of images to express or imply claims, and therefore, to increased scrutiny surrounding such messaging.