ADventures in Law

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When it rains, it pours! We just wrote about the National Advertising Division’s (NAD) <a href="https://www.adventures-in-law.com/blogs/a-meaty-new-puffery-case-to-sink-your-teeth-into/" target="_blank" rel="noreferrer noopener">beef jerky case</a> finding that most claims of “clearly better” were boastful puffs and not comparative claims. But before we fully digested that one, <a href="https://bbbprograms.org/media-center/dd/ba-sports-nutrition" target="_blank" rel="noreferrer noopener">NAD has again given us new precedent to wash down</a>, this time in the ongoing water wars. In a Single Well-defined Issue Fast Track (SWIFT) challenge, Gatorade contested BodyArmor Flash I.V.’s statement that “the rehydration champ is here.” 

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The basic boundaries are that obvious hyperbole or exaggerated boasts that are unprovable are puffs. Such bravado becomes a claim when linked to performance or a tangible product attribute that must be substantiated. In this case, NAD told us it puts promises of “champ,” “undefeated,” “first,” “premier,” “superior” and “tops” through this same “best” analysis. In this case, NAD found that “champ” was connected to rehydration, which is an objectively measurable performance attribute.

BodyArmor pivoted to assert it is superior for rehydration because it has more electrolytes. Gatorade asserted that hydration is individualized and is not exclusively dependent on electrolyte levels but varies based on sweat level and other factors. Both sides submitted some published research, but NAD found that a superior hydration claim would need to be supported by comparative performance testing, while noting BodyArmor could tout the relative electrolyte content. It is an interesting question whether BodyArmor could have said it was the “electrolyte champ” and stayed within the guidelines of the decision, since NAD found that BodyArmor could make claims around having more electrolytes than competitors but could not make claims around comparative hydration without more support.

One interesting side note about the case is that in this SWIFT challenge, NAD apparently did review some scientific substantiation. While SWIFT jurisdiction was clarified to allow implied claim challenges rather than only express claims, typically cases with any sort of scientific substantiation are destined for the regular track, which takes months longer than the rapid pace of SWIFT – 20 days from filing to decision. It could be that neither side contested jurisdiction, or it could be that NAD is expanding the breadth of cases eligible for SWIFT review. What is and is not appropriate for SWIFT review has been hotly contested from the dawn of this process several years ago. I suspect NAD will continue to do what it has done to date and not draw bright lines but continue to take a practical approach to whether it thinks it can reasonably handle a challenge in such a short time frame.&nbsp;

Drink It In: NAD Showers Us with Another ‘Best’ Claim Case