NAD Refers BODYARMOR Nutrition to FTC After Company Fails to Comply with NAD Recommendations to Modify, Discontinue Certain Advertising Claims

New York, NY – Oct. 16, 2014 – The National Advertising Division referred advertising claims made by BODYARMOR Nutrition LLC for its BODYARMOR SuperDrink to the Federal Trade Commission (FTC) after a compliance review indicated that the company had not complied with the terms of an earlier NAD decision.

NAD is an investigative unit of the advertising industry’s system of self-regulation and administered by the Council of Better Business Bureaus.

In the underlying case, Stokely-Van Camp, Inc., maker of competing Gatorade sports drinks, challenged advertising claims made by BODYARMOR.

NAD recommended that the advertiser either discontinue its “SUPERIOR NUTRITION + HYDRATION” claims in the comparative contexts in which the claims appeared or modify the claim to avoid conveying the unsupported message that its product provides superior nutrition and hydration in comparison to Gatorade.

NAD further recommended that, with respect to the advertiser’s website and product label, the advertiser either discontinue its “ELECTROLYES: 2½X THE LEADING SPORTS DRINK” claim in the contexts presented or sufficiently modify it to limit this claim to a stand-alone context and avoid any implication of superior hydration due to the inclusion of two and one-half times the electrolytes of Gatorade.

BODYARMOR said that it would take NAD’s recommendations into account in future advertising and product labeling.

The challenger recently requested that the NAD initiate a compliance review, asserting that the advertiser continued the make “SUPERIOR NUTRITION + HYDRATION” and “2½X electrolytes” claims. Further, the challenger contended that the advertiser also directs consumers to “UPGRADE” their sports drink, continuing to convey the unsupported message that BODYARMOR is superior to the challenger’s Gatorade, contrary to NAD’s recommendation that such claims be discontinued.

In response to NAD’s compliance inquiry, the advertiser detailed its efforts to bring advertising into compliance with NAD underlying decision and explained instances where non-compliance was inadvertent.

The advertiser contended that BODYARMOR’s message to consumers to “UPGRADE YOUR SPORTS DRINK” was not a violation of NAD’s decision, but rather conveyed the excellence or high quality of BODYARMOR’s product. The advertiser argued that the claim was not at issue in NAD’s initial decision and was not appropriate for review in the context of a compliance proceeding.

NAD disagreed. NAD determined that the message conveyed an unsupported comparative superiority claim and was well within NAD’s purview in a compliance proceeding.  NAD recommended that the “upgrade” claim as it appeared on packaging, at the advertiser’s website, and in testimonials from professional athletes, be discontinued or modified so as to to bring BODYARMO’s advertising into compliance with NAD underlying decision.

BODYARMOR, in response, said that it disagreed with NAD’s recommendations, and declined to participate further in these proceedings.

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.

NAD was disappointed that the advertiser declined to bring its advertising into compliance with NAD’s decision and its recommendations. In light of the advertiser’s position, NAD has referred the matter to the FTC for further review.