Last week, the media was full of headlines about a US lawsuit which had apparently resulted in energy drink maker Red Bull having to pay millions of dollars in compensation to US consumers. Red Bull, so the stories ran, had been sued for its “Red Bull gives you wings” slogan which was alleged to be false and misleading.
In fact, no one has sued Red Bull because they haven’t personally sprouted wings. Nor has Red Bull been found by the US court to have done anything wrong. Rather, Red Bull has decided to settle a class action brought against it by some unhappy US consumers. Under the proposed settlement thrashed out with the claimants, Red Bull has agreed to make changes to its advertising and to make a fund of several million dollars available to reimburse individual US consumers.
At the heart of the Red Bull case is the suggestion that the company’s advertising had exaggerated the properties of its famous energy drink and thereby deceived consumers into paying a premium price for it. Red Bull’s marketing, including its metaphorical “gives you wings” slogan, is said to have gone beyond mere advertising “puffery”. In fact, so the claimants allege, Red Bull is no more likely to stimulate the senses or improve your performance than your average – and cheaper – cup of coffee.
Like Red Bull, many other brands employ such slogans to help promote their products and services. So does this mean that we about to see a rush of similar cases in the UK?
The short answer is no.
Although the UK has laws which prohibit misleading advertising, the enforcement of those regulations is largely the responsibility of local trading standards authorities and the Competition and Markets Authority (which replaced the old OFT). Unlike it would seem in the US, it is not so easy for consumers to bring a “Red Bull”-style claim directly themselves in the English courts. Consumers may be able to sue if they are misled into buying something by false advertising. But such a claim would be in relation to that transaction, rather than a more general attack on the brand’s advertising practices.
There is also a system of self regulation in the UK operated via the Advertising Standards Authority (ASA) which provides a cheap, albeit somewhat limited system of tackling advertisers who stray over the line.
In the UK, it is unlikely that metaphorical or other slogans used to advertise things, will come under attack provided they are seen as “puffery” rather than statements of fact which need to be substantiated. Consumers are presumed to see through such slogans. Only if they are likely to be misled by them will there be a risk to the advertiser.
Another area of advertising which has tended to breed litigation over the years is so-called “comparative advertising” (ie where a trader favourably compares its products or services against those of a competitor).
But whilst such advertising continues to be legal (and much favoured, for example, by supermarket retailers trumpeting their cheaper prices) the scope for using metaphors and even denigration of rival offerings has been much reduced by EU legislation. The celebrated “EXPENSIVE BA****DS” campaign by Ryanair against British Airways in 1999, is an example of a type of comparative advert that would probably not be permitted today.
Meantime, the proposed Red Bull settlement still has to be approved by the US court next year before it can take effect. If it may have limited consequences for British advertisers, it remains to be seen whether the case will start a trend across the Atlantic.
Mike Gardner is a media/IP lawyer and a parner at Wedlake Bell LLP