Should advertisers be held to their straplines?
I expect you’re thinking about Benjamin Careathers.
Some time in 2013, Careathers drank a can of Red Bull and discovered that it didn’t give him wings. But he’s a sophisticated chap, Careathers; he knows about hyperbole.
So he didn’t sue Red Bull because he failed to acquire wings; he sued Red Bull when he discovered that a 250ml can of Red Bull contained no more caffeine than a cup of coffee and claimed to have been misled. In August, a judge agreed with him, finding the claim "deceptive and fraudulent and… therefore actionable".
As a result, Red Bull decided to settle. Anyone who bought a can of Red Bull between 2002 and 2014 may be entitled to $10 in cash, no proof of purchase required: a settlement that could cost the company $13 million.
Possibly for the first time, a fanciful use of verbal imagery – in this instance, not even employing the word "energy" – has been interpreted in law as a "claim" and found to be fraudulent.
The judge’s finding should be causing a great many chief executives, perhaps for the first time ever, to enquire of their chief communications officers just what the company’s strapline is and whether their lawyers think it Careathers-proof.
For the fortunate majority, there is nothing to fear.
Their straplines are little masterpieces of vacuity: Impossible is nothing. The power of dreams. Empowering people. Get closer. Life’s for sharing. On your side.
They seem specifically crafted to thwart any potential challenge from Careathers. "It’s got our name on it" seems pretty safe as well, as long as it has. But others are rather more vulnerable.
"The best a man can get"? No clear acknowledgment that this claim is restricted to shaving. Ben could easily have been misled into thinking that, by buying a Gillette shaving device, he’d be getting the best interest rates and the best women. Sue.
"Kills germs dead"? Quite apart from the tautology, this is highly dangerous talk. Just one surviving germ – just one seriously poorly germ, a not-yet-finally-departed germ – would be more than enough for Ben to pounce. Sue.
"You either love it or you hate it"? Ben has only to swear on oath that he can take it or leave it to have a watertight case. Sue.
CEO: Remind me, Jason: do we have a strapline?
CCO: We certainly do, JR!
CEO: Of course, silly of me… But it doesn’t mean anything, does it?
CCO: It can mean anything you want it to mean, JR, or, there again, nothing. That’s its great strength! It was tested against another 16 candidate phrases and this was the only one that absolutely nobody could find anything to object to! We even tested it internally and even our own staff couldn’t think of anything to say against it!
CEO: Excellent. So we’re still using… that one that we all agreed on, right?
CCO: Absolutely, JR! "Where past and future meet!" Great line!
CEO: And we can be absolutely certain, can we, that it doesn’t mean anything? We’ve run it by the lawyers and all that?
CCO: The lawyers say that, if it means anything, it means "now". Like, "the present". It means that this company exists at this moment in time.
CEO: And is that a meaningful statement for a company like ours to be making?
CCO: I do hope not, JR!
CEO: Well done, Jason. Good man.
My agency would like to cut the fee I pay them for the work they do and, instead, take a share of any increase in sales. I’m told that’s quite a fashionable thing to do these days. Would you agree that it’s a good idea?
As any study of the IPA’s database will confirm, much of the most effective advertising simply helps maintain brand share and profit margin, but with no significant increase in volume sales.
This being the case, you should snap up your agency’s offer immediately. (You might also begin to doubt their business acumen.)
‘Ask Jeremy’, a collection of Jeremy Bullmore’s Campaign columns, is available from Haymarket, priced £10.Telephone (020) 8267 4919
Jeremy Bullmore welcomes questions via firstname.lastname@example.org or Campaign, Teddington Studios, Broom Road, Teddington, TW11 9BE