In the Courtroom: Gatorade Settles Water Complaint; SSB Warnings Overturned

Gatorade Soaked in California Water Complaint

The old debate over sports drinks versus water became a legal matter last month, when California Attorney General Xavier Becerra announced the filing of a complaint and a subsequent settlement over claims that The Gatorade Company depicted water as a hinderance to athletic performance in a branded video game.

According to a statement from the Attorney General’s office, the complaint centered around “Bolt!,” a video game available for free in the Apple iTunes store in 2012, in which players are tasked with navigating an animated version of runner and Olympic gold medalist Usain Bolt through a race to recover gold coins. The game’s tutorial explains that players should “Keep Your Performance Level High by Avoiding Water.” During the game, icons featuring the Gatorade logo will periodically appear and give Bolt a speed boost and increase in his “fuel meter”; however, upon touching a water droplet icon, the character slows down and loses “fuel.”

A still image from Gatorade’s “Bolt!” video game, in which water is portrayed as a hinderance to athletic performance.

In his complaint, Becerra alleged that Gatorade violated state consumer protection laws by making misleading statements about water, specifically citing the fact that the sports drink brand used social media marketing to promote the game and its message to younger audiences. The app, which is no longer available, was downloaded over 2.3 million times in 2012 and 2013, and an estimated 30,000 times in California alone.

“Making misleading statements is a violation of California law. But making misleading statements aimed at our children is beyond unlawful, it’s morally wrong and a betrayal of our trust,” Becerra said. “Today’s settlement should make clear that the California Department of Justice will pursue false advertisers and hold them accountable.”

Gatorade will be required to pay $300,000 as part of the settlement, of which $120,000 is earmarked to fund research or education on water consumption and the nutrition of children and teenagers. In addition, the company is prohibited from negatively depicting water in any form and must disclose endorser relationships in any social media posts. Any advertising of Gatorade products in media where children under age 12 comprise more than 35 percent of the audience is also prohibited.

Court Overturns San Francisco SSB Health Warning Ordinance

Last month, the U.S. Court of Appeals for the Ninth Circuit struck down a San Francisco ordinance requiring advertisements for sugar-sweetened beverages (SSB) to contain health warnings linking consumption of such drinks to an increased risk of obesity, diabetes and tooth decay.

The law required that every outdoor advertisement for SSB products include the following warning, which must occupy at least 20 percent of the area of the ad: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay.”

In its decision, the appeal court ruled that requiring advertisers to include the warning was a violation of their First Amendment rights not to be compelled to convey the government’s message. The court’s recognition of the statement as “controversial” was an important element; because the statement suggested that any consumption, rather than over consumption specifically, could lead to obesity, diabetes and tooth decay, it was deemed as “controversial.” In the case of “noncontroversial” statements, such as listing product ingredients, governments can legally require them to be included in label and packaging.

The court also noted that by allotting 20 percent of the advertising space for the health statement, the warning “effectively takes over [the advertiser’s’] message” and “imposes an undue burden that may chill protected speech.”

Poland Spring Files Motion to Dismiss Suit

On Oct. 6, Nestlé Waters North America filed a motion to dismiss a lawsuit filed in August alleging that Poland Spring water products do not meet the U.S. Food and Drug Administration (FDA) definition of spring water.

In the motion, a spokesperson for Nestlé Waters cited an Aug. 28 letter from the State of Maine Drinking Water Program (DWP), the state agency that enforces FDA rules for bottled water in the state, that confirms that all eight springs controlled by Poland Spring “meet the U.S. Food and Drug Administration of spring water.”

“Consumers can be confident in the accuracy of the labels on every bottle of Poland Spring, and that Poland Spring is just what it says it is – 100 percent natural spring water,” said a company spokesperson in a statement on Monday. “The DWP letter is further validation of this important fact, despite the allegations of opportunistic attorneys in their baseless lawsuits.”

The suit alleges that none of Poland Spring’s eight “natural spring” sites meet FDA regulations which require all bottled spring water “to be collected either at the source of a naturally spring” or from a well that “extracts water that could otherwise exit the earth’s surface from a natural spring.”

Nestlé previously settled a 2003 class action suit filed in Connecticut Superior Court that made similar claims disputing the source of Poland Spring bottled water.