Gatorade recently learned two timeless lessons the hard way from the State of California. First, never mess with water. Second, advertising claims are everywhere, including in what some might consider to be just fun and games. In exchange for these lessons, Gatorade paid the State of California $300,000 and agreed to injunctive relief.
So what attracted California’s attention? Gatorade in conjunction with Usain Bolt created a cellphone game called “Bolt” in which players help Bolt pick up coins. Touching a Gatorade icon made Bolt run faster, while touching a water droplet slowed the world’s fastest human down (and decreased the “fuel meter”). In case the point was too subtle, the game’s tutorial also instructed users to “keep your performance level high by avoiding water.” California alleged that the game was downloaded 2.3 million times.
California alleged that Gatorade’s Bolt game falsely disparaged water. California also took particular issue with the fact that Bolt was marketed to a particularly youthful audience and that sports drinks often have a high sugar content. As a result Gatorade also agreed not to advertise its products in any media where children under age 12 make up more than 35% of the audience. Finally, although no allegations regarding influencers were made in the complaint, Gatorade also agreed to make reasonable efforts to include in its endorsement contracts that endorsers will “clearly and conspicuously disclose their relationships . . . in communications promoting Gatorade (in compliance with applicable laws and regulations) on any webpages or through social media channels controlled by that person aimed at the general public.”
All of which goes to show, you can’t outrun the law.