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Red Bull does NOT give you wings?!

Remarkable news from the United States: several media report that the Austrian energy drinks producer Red Bull has concluded a 13 million dollars settlement. Why? Because Red Bull does NOT give you wings. But we all knew that, right? So why this settlement in the US?

Different from the Netherlands, the United States has a lively practice of class actions. And this is exactly what happened to Red Bull: American consumers started a class action challenging Red Bull’s well-known advertising slogan. The slogan “Red Bull gives you wings” and the product’s relation to sports achievements and concentration were challenged as they would too much give the impression that that the energy drinks enhance performance. Which is misleading, according to the claimants.

Giving too much the impression of enhancing performances? Do the American claimants have a point here? In Dutch advertising law typical exaggeration is allowed. Red Bull “giving you wings” is exactly that: the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally. As a consequence, it is very unlikely that a case against this slogan would be successful in the Netherlands.

In the United States, Red Bull has decided to settle. Undoubtedly, this decision should be seen against the background of the American system were class action claims are possible. The substance of the settlement: every American who has drunk Red Bull in the past ten years is entitled to 10 dollars in the form of a cheque or 15 dollars worth of Red Bull products, with a maximum of 13 million dollars. Before consumers are compensated, the District Court for the Southern district of New York has to approve the settlement. The decision is scheduled for 1 May 2015. That will take a while. Still, this remains – especially for the Dutch public – a remarkable case:  giving your commercial wings should be allowed, right?       

Bram Duivenvoorde, advertising law specialist

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