The California Attorney General’s Office recently filed and settled a case against The Gatorade Company for violating state law false advertising and unfair competition statutes. The case arose out of a free videogame app that Gatorade developed and made available on iTunes. The app—which is no longer downloadable—featured a cartoon Usain Bolt who ran faster when he drank Gatorade and slower when he drank water. The game’s tutorial expressly instructed players to “Keep Your Performance Level High by Avoiding Water.” The admitted purpose of the game was to be both entertaining and to target a youthful audience with a Gatorade-branded message.
Advergames are downloadable, Internet-based, or computer-based videogames that feature a brand-name product, often as an integral part of the game. They have advanced over the years from simple product placement within a videogame—such as a billboard in a car racing game—to games that make the player directly interact with the brand—the brand becomes the game and the reward.
The Gatorade advergame was very successful. There were more than 2.3 million downloads and 87 million games played worldwide. More than 70% of the users were 13 to 24 years old. It was also very successful as an ad—it won the bronze in Mobile Advertising at the 2013 IAB MIXX Awards.
Advergames are big business and are used by many companies. Some of the fast food mobile apps award free food coupons as part of the game and send you a push message with a coupon when you are within a certain physical distance from a restaurant—the game crosses over into reality seamlessly.
Some of the more advanced advergames are built for computers—like “Doritos VR Battle,” and some are built for the Xbox—like “Doritos Crash Course 2” and “Dash of Destruction.” This last one pits a Doritos delivery driver against a Tyrannosaurus Rex—you can choose which you’d like to be.
It’s all fun and games, right? Maybe. Most of these games are being played by young people who do not even realize that the game will affect their choices in the real world. Studies have confirmed that “advergames” have significant impact on consumer behavior (which is why they are big business). See, e.g., Harris, Jennifer L., et al., US Food Company Branded Advergames on the Internet: Children’s Exposure and Effects on Snack Consumption (February 2012), Rudd Center for Food Policy and Obesity, Yale University, Journal of Children and Media, Vol. 6, No. 1, p. 51-68, at p. 63 (“This form of marketing appears disproportionately to children; and advergames have the potential to negatively affect snack food consumption in a similar manner to television advertising.”). Who knows how long a child will choose Burger King over some healthier option because she loved playing “Sneak King,” “Pocketbike Racer,” and “Big Bumpin”—three games marketed by Burger King in Value Meals.
Okay, so advergames affect behavior—but isn’t that the goal of all advertising—and advertising is good, right? Yes, but when the ads make misrepresentations (especially that suggest unhealthy choices to children)—lawsuits follow.
Misrepresentations within the advergames are actionable just like any other false or misleading statement in an advertisement. California law prohibits false or misleading statements in connection with the selling of a good. Those statements can be made through words, images, or a combination thereof. Similarly, Maryland’s Consumer Protect Act targets, among other things, false or misleading “oral or written statement[s], visual description[s], or other representation[s] of any kind which [have] the capacity, tendency, or effect of deceiving or misleading consumers.” Md. Comm. Code § 13-301(1) (emphasis added). Clearly, advergames could fall within this definition.
In the Gatorade case, the California Attorney General targeted three misrepresentations in the Usain Bolt game: (1) that Gatorade consumption increases your speed while water consumption decreases your speed; (2) that Gatorade consumption increases the amount of “fuel” available to an athlete while water consumption decreases the amount of “fuel” available; and (3) that athletes should “Keep Your Performance Level High by Avoiding Water.”
Interestingly, the complaint relied on research studies by the Rudd Center for Food Policy and Obesity, and a quote from the American Academy of Pediatrics to belie any notion that Gatorade actually is better fuel for athletes than water—especially when those athletes are children. Presumably not wanting to litigate this issue, Gatorade cooperated with the Attorney General’s Office to settle the case the same day it was filed.
The bottom line for our purposes—advergames are advertising and they cannot be false or misleading.
If you have questions about ads you are planning to run, or you have been accused of false advertising, contact Jim Astrachan at 410-783-3550 (email@example.com) or Elizabeth Harlan at 410-783-3528 (firstname.lastname@example.org).