One serendipitously-named Olympic athlete. Anti-water gameplay. 2.3 million downloads. And now, a $300,000 fine.

Culture Policy Tech

Last week, Gatorade—the PepsiCo-owned sports drink brand—agreed to pay a $300,000 settlement in a false advertising suit brought by the State of California. The state took issue not with a magazine spread or TV commercial or radio spot, but with a branded video game for mobile devices, a format of increasing interest to advertisers. By levying the fine, California’s Attorney General Xavier Bercerra sent a clear message: brands that make misleading claims are going to get sued, no matter how new the platform.

“Bolt!,” which was distributed for free via the iTunes store, was a racing game app starring the celebrated sprinter Usain Bolt—whose name, aptly enough, calls to mind not only speed but Gatorade’s famous thunderbolt logo. Gameplay involved piloting a cartoon version of Bolt along a racetrack, and featured a not-so-subtle message: Players were instructed to look for Gatorade power-ups and avoid water droplets, which sapped the sprinter’s energy.

Usain Bolt Gatorade GameGatorade

From a marketing standpoint, the game was a smash success. According to data supplied by Gatorade and referenced in the suit, “Bolt!” had 2.3 million downloads and was played more than 87 million times worldwide; 70 percent of users were between 13 and 24 years old. That youthful segment was the overt target of Manning Gottlieb OMD, the creative agency behind the project. “Teen athletes often chose to drink water during practice because they thought it provided the proper hydration they needed,” the firm said, in a now-deleted presentation cited by CNN. “So we came up with an entertaining and competitive way to reinforce to teens that consuming Gatorade would help them perform better on the field and that water was the enemy of performance.”

That’s where the trouble started. “This fanciful videogame, which featured animation of flying pirate ships and stolen gold, courted a youthful demographic that is particularly prone to inaccurate beliefs regarding the nutrition benefits of bevarages,” wrote the Attorney General’s office, in its complaint, pointing out that the game explicitly “instructed its teen and young adult audience to ‘Keep Your Performance High By Avoiding Water.’”

Video games have been used to shill junk food for almost as long as they’ve existed. Anyone with an Atari 2600, the early game console that sold millions of units in its early-80s heyday, could play heavily-branded offerings like Kool-Aid Man and Pepsi Invaders; according to Wired, more recent examples include the Doom-style shooter Chex Quest and a Wrigley-developed adventure quest called Darkened Skye, featuring a magical enchantress powered by Skittles. Now, the mobile revolution has brought so-called “advergames” into a new era: App Store offerings include Oreo’s unappetizingly-named “Twist, Lick, Dunk” and Cheetos’ “Flames of the World.”

Screenshots from the early advergame Kool-Aid Man (1983)VG Museum

Oh yeah: Screenshots from the early advergame Kool-Aid Man (1983).

So far, more research is needed to determine whether branded games are any more successful than traditional ads, though there’s some evidence to suggest they can work at least as well. But California’s suit signals that it’s not going to look the other way on branded games, just because the genre is still in its infancy.

“California law prohibits false or misleading statements in connection with the selling of a good,” the plaintiffs wrote, in the complaint. “This is true regardless of the medium in which the statements are made—whether through more traditional advertising or emerging fields.”

Part of the settlement—$180,000—will be used to defray California’s legal costs, while the remaining $120,000 will be paid to the Attorney General’s office and used by the state to promote study, education, and research related to childhood nutrition and non-branded water consumption. But though a $300,000 fine is enough to financially ruin a mom-and-pop soda shop, it’s chump change for PepsiCo, one of the largest food and beverage companies in the world. And the final settlement is a far cry from the penalty California was pushing for if the case went to trial: $2,500 per demonstrated infraction. As many as 30,000 Californians downloaded the app within the state, according to the complaint. Proven violations could quickly have tallied into the tens of millions of dollars.

As video games become even more immersive and compelling, advertisers will continue to find new ways to integrate brand messages. The question is how much latitude they’ll have, compared to traditional media, to game the system and promote false claims. Considering that “Bolt!” was played by millions worldwide, is a $300,000 fine enough to persuade PepsiCo and its competitors to be more honest in its apps? We’ll see.

Joe Fassler bio

Joe Fassler

Joe Fassler is New Food Economy's senior editor. His food safety and public health reporting has been a finalist for the James Beard Foundation Award in Journalism. Follow him @joefassler.