The Powerade-Gatorade Dispute
Coca-Cola’s reformulation of Powerade added electrolytes to compete with Gatorade. The company promoted this change with comparative advertising, including a social media post that highlighted that Powerade contained “50% more electrolytes than Gatorade,” alongside a side-by-side ingredient comparison. The post also featured a flexed-arm emoji with the caption “Don’t underestimate the power of electrolytes.”
The numerical claims were factually accurate, but Stokely-Van Camp (Gatorade’s manufacturer) challenged the ad before the BBB National Programs’ National Advertising Division (NAD). Gatorade argued that the use of the flexed-arm emoji implied that Powerade drinkers would be stronger than Gatorade drinkers.
NAD and NARB Reach Different Conclusions
The NAD agreed with Stokely-Van Camp and recommended that Coca-Cola modify its advertising. According to the decision, the emoji contributed to an implied superiority message that lacked substantiation. On appeal, the National Advertising Review Board (NARB) partially reversed its decision. The board concluded that the emoji did not communicate a superiority claim but simply emphasized Powerade’s increased electrolyte content, which was an undisputed fact.
The NARB upheld NAD’s view that Coca-Cola should not imply that more electrolytes necessarily translate into better athletic performance without supporting evidence. This split between NAD and NARB shows the nuances of emoji use and the importance of symbolic elements in advertising. Emojis may seem straightforward, but they can change the way consumers interpret claims and how claims are regulated.
Emojis and Precedent in Advertising Disputes
The Powerade decision is not the first time emojis or visual symbols have been the subject of challenges. In the BodyArmor case (NAD Fast-Track SWIFT Case #7047), a nauseated-face emoji following a blind taste test was deemed to convey an unsubstantiated disparagement of Gatorade. The NAD rejected defenses that framed the emoji as puffery or subjective opinion. Imagery, context, and presentation contribute to how consumers interpret advertising claims and, taken together, are subject to the same claim substantiation standards as words.
The Role of Consumer Surveys
There is no exact prediction of how consumers interpret symbolic messaging; however, consumer surveys provide the most reliable insights. Testing audience perception determines whether consumers view a flexed-arm emoji as a literal representation of strength. They can also measure whether consumers believe visual cues convey implied enhanced performance claims that require further substantiation.
When challenges to advertising arise, surveys offer regulators and courts reliable evidence of consumer understanding--and for litigators and marketers, they provide evidence and minimize the risk of a challenge.
The Powerade case shows the impact of emojis in digital and social advertising on consumer interpretation. Emojis can pose challenges and become focal points in regulatory reviews; therefore, their messages should be substantiated. If your brand is preparing a campaign that blends factual claims with emojis or other visuals, IMS Legal Strategies can design and deliver consumer surveys to strengthen and defend your advertising.
