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NAD Finds Emojis Communicate Clear Messages in Advertising

In a pair of recent decisions, the National Advertising Division (NAD) of BBB National Programs examined the use of emojis in advertising and found in at least one case that emojis can make expressly disparaging statements.

global study of 7,000 emoji users conducted by Adobe in 2021 revealed that more than half of those surveyed are likely to open a brand's emails or push notifications if they contain emojis. Over 40 percent of the sample said they were more likely to purchase products advertised using emojis. Younger consumers also prefer customer support teams that use emojis in chat or email, according to Inc Magazine. But the NAD's recent decisions show that brands should be judicious with their emoji use — or, at least stop to consider what statement those emojis may be making on their behalf.

In a case of first impression, the NAD examined a social media video from BA Sports Nutrition, which produces the sports drink BodyArmor. 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 he is handed an orange drink that the NAD said was "clearly" Gatorade's Orange Thirst Quencher. When Mayfield tastes the Gatorade, the "Nauseated Face" and "Face with Tears of Joy" emojis appear on the video while he says the drink is "awful."

The NAD found that the video falsely disparaged Gatorade. Considering and rejecting BA Sports Nutrition's arguments in turn, the NAD said that emojis are not merely subjective; they can communicate "clear messages" in some contexts. In the Baker Mayfield video, given that the Gatorade is identifiable, the pair of emojis contributed to a "harshly negative statement" which called Gatorade (among other things) nauseating.

Next, the NAD said the video went beyond mere puffery. Although the Baker Mayfield video was intended to be humorous, it still reasonably conveyed an express message about a competitor. Because the express claim was provable, it required substantiation that BA Sports Nutrition did not provide. The NAD recommended the discontinuance of four express claims: 1) Gatorade is "awful," 2) drinking it is "not cool," 3) it is nauseating, and 4) people spit it out after they drink it. The third claim, a statement that Gatorade is nauseating, comes solely from BA Sports Nutrition's emoji use. This case is the first in which emoji use gives rise to an express claim of false disparagement. The decision puts advertisers on notice that emojis are more than just suggestive; they are statements, which can be characterized as false claims.

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 began. Art of Sport "voluntarily" and "permanently" discontinued its use of a pair of short cartoon videos in which two deodorant canisters compete against each other in 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.

Even though the NAD did not consider the merits of Procter & Gamble's complaint, for compliance purposes it noted that it would treat the claim as though it recommended Art of Sport's discontinuance of the claims and Art of Sport complied. Though the NAD did not actually rule on the Art of Sport claim, its emoji decisions are instructive nonetheless.

The NAD rendered both decisions using its SWIFT (Single Well-defined Issue Fast-Track) program, under which challengers may bring advertising disputes that do not require review of complex evidence or substantiation. The benefit of this program — quick resolution of disputes — can also pose challenges for advertisers. Decision makers in the program limit their analysis to a single issue and consider only one substantive submission from each party.

More analysis of emojis in advertising is likely to follow in other cases, but the NAD has made clear in these recent decisions that context matters in determining whether emoji use is sufficient to make a claim. Advertisers seeking to use emojis in new or innovative ways must be careful about making verifiable, substantiated claims when doing so.

©2022 Katten Muchin Rosenman LLPNational Law Review, Volume XII, Number 27
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About this Author

Rachel J. Schaub IP Attorney Katten Law Firm
Associate

Rachel Schaub is an associate in the Intellectual Property practice.

1.312.902.5357
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