Food and Drink - Spring 2014 - 15

marketing law

ergy drink sales increased 19 percent
last year. One study concluded that energy drinks make up 8.8 percent of beverages consumed by high school students. With increased market share
comes increased scrutiny and since
late 2012, legislators such as Senator
Richard Blumenthal [D-Conn.] have
been calling on energy drink manufacturers to cease marketing their products to children under 12 years of age.
However, legislative action may be
only one vulnerability for this fastgrowing segment, especially as plaintiffs' firms interested in filing suits
against energy drink manufacturers
over their marketing practices may possess a blueprint for such litigation.

Monster Energy over its marketing
practices, including the allegation that
Monster drinks were impermissibly
marketed to children. The complaint invoked California's unfair competition
law, which prohibits "unlawful, unfair
or fraudulent business acts or practices," and argued that marketing energy drinks to minors violated this law
because minors are inherently unable
to understand the significant health
risks attendant to these products. The
outcome of the dispute between
Monster and San Francisco could have
a major impact on how energy drinks
are marketed, and whether additional
lawsuits are brought by city and state
governments, or by private individuals
where allowed.

Product Association
Remember the "Joe Camel" campaign
by R. J. Reynolds Nabisco? In 1991, the
Journal of the American Medical
Association published a study showing
that by age six, many children were
able to associate the Joe Camel logo
with Camel cigarettes.
Subsequently, a San Francisco-based
attorney filed a lawsuit alleging that the
campaign was an impermissible
attempt to gear tobacco marketing to
minors. While the FTC refused to
declare Joe Camel an unfair advertising
practice, in 1997 it voted that the character did attract underage smokers. In
July 1997, under pressure from the
impending trial, as well as from
Congress and anti-smoking groups,
R.J. Reynolds settled the case and voluntarily ended the Joe Camel campaign.
The first case involving similar litigation against energy drink manufacturers is already under way. In May 2013,
the San Francisco city attorney sued

Smart Marketing
For energy drink manufacturers doing
business in California or other states
with similar unfair competition laws,
caution should be the watchword in
marketing. It would be wise to avoid
any appearance that marketing efforts
are directed towards an audience
younger than 12 years old.
Practically speaking, that means operating with vigilance, and likely seeking the advice of counsel prior to beginning new marketing initiatives, particularly those that rely on Internet and
social media platforms that are popular
with young adults, but where it is difficult to exclude consumers below a certain age. Sponsorships are often a particularly valuable marketing tool for
beverage manufacturers and potentially troublesome if the event or activity
involved is likely to have a substantial
youth following.
Interestingly, the American Beverage
Association prohibits marketing energy

drinks to children, and Monster defends
its products in part by arguing that its
marketing does not target minors. This
highlights another issue: namely, that it is
surprisingly difficult to discern what
courts, juries and regulatory bodies may
view as youth-directed marketing.
Imagine that an energy drink manufacturer sponsors a NASCAR racing
team, emblazoning its name and logo
all over the sponsored driver's car.
There may be a justifiable basis to argue that this is not marketing directly to
children. However, imagine that a replica of that car is licensed to be sold as a
toy, including the energy drink logo on
the hood. In that case, is the energy
drink maker now impermissibly marketing towards children? The answer is
far from obvious.
On December 16, 2013, Blumenthal
held a press conference and accused
several major energy drink manufacturers of marketing to children by producing toys bearing energy drink logos.
It is important to be thinking about
these issues, and to seek advice from
counsel experienced in consumer issues
and an understanding of how marketing
initiatives could be received by those interested in litigation.
Determining what is and is not permissible, or what may or may not trigger
a lawsuit, is not always as obvious as it
might otherwise seem. Proceeding with
caution, and with as much information
and professional guidance as possible,
is the safest course.
Michael Gruver and Glenn Pogust ,
are lawyers in the Product Liability
Practice of law firm Kaye Scholer LLP
.
They can be reached at michael.gruver@kayescholer.com and
glenn.pogust@kayescholer.com.
food & drink * spring 2014 * www.fooddrink-magazine.com

15


http://www.fooddrink-magazine.com

Table of Contents for the Digital Edition of Food and Drink - Spring 2014

Contents
Food and Drink - Spring 2014 - Cover1
Food and Drink - Spring 2014 - Cover2
Food and Drink - Spring 2014 - 1
Food and Drink - Spring 2014 - 2
Food and Drink - Spring 2014 - Contents
Food and Drink - Spring 2014 - 4
Food and Drink - Spring 2014 - 5
Food and Drink - Spring 2014 - 6
Food and Drink - Spring 2014 - 7
Food and Drink - Spring 2014 - 8
Food and Drink - Spring 2014 - 9
Food and Drink - Spring 2014 - 10
Food and Drink - Spring 2014 - 11
Food and Drink - Spring 2014 - 12
Food and Drink - Spring 2014 - 13
Food and Drink - Spring 2014 - 14
Food and Drink - Spring 2014 - 15
Food and Drink - Spring 2014 - 16
Food and Drink - Spring 2014 - 17
Food and Drink - Spring 2014 - 18
Food and Drink - Spring 2014 - 19
Food and Drink - Spring 2014 - 20
Food and Drink - Spring 2014 - 21
Food and Drink - Spring 2014 - 22
Food and Drink - Spring 2014 - 23
Food and Drink - Spring 2014 - 24
Food and Drink - Spring 2014 - 25
Food and Drink - Spring 2014 - 26
Food and Drink - Spring 2014 - 27
Food and Drink - Spring 2014 - 28
Food and Drink - Spring 2014 - 29
Food and Drink - Spring 2014 - 30
Food and Drink - Spring 2014 - 31
Food and Drink - Spring 2014 - 32
Food and Drink - Spring 2014 - 33
Food and Drink - Spring 2014 - 34
Food and Drink - Spring 2014 - 35
Food and Drink - Spring 2014 - 36
Food and Drink - Spring 2014 - 37
Food and Drink - Spring 2014 - 38
Food and Drink - Spring 2014 - 39
Food and Drink - Spring 2014 - 40
Food and Drink - Spring 2014 - 41
Food and Drink - Spring 2014 - 42
Food and Drink - Spring 2014 - 43
Food and Drink - Spring 2014 - 44
Food and Drink - Spring 2014 - 45
Food and Drink - Spring 2014 - 46
Food and Drink - Spring 2014 - 47
Food and Drink - Spring 2014 - 48
Food and Drink - Spring 2014 - 49
Food and Drink - Spring 2014 - 50
Food and Drink - Spring 2014 - 51
Food and Drink - Spring 2014 - 52
Food and Drink - Spring 2014 - 53
Food and Drink - Spring 2014 - 54
Food and Drink - Spring 2014 - 55
Food and Drink - Spring 2014 - 56
Food and Drink - Spring 2014 - 57
Food and Drink - Spring 2014 - 58
Food and Drink - Spring 2014 - 59
Food and Drink - Spring 2014 - 60
Food and Drink - Spring 2014 - 61
Food and Drink - Spring 2014 - 62
Food and Drink - Spring 2014 - 63
Food and Drink - Spring 2014 - 64
Food and Drink - Spring 2014 - 65
Food and Drink - Spring 2014 - 66
Food and Drink - Spring 2014 - 67
Food and Drink - Spring 2014 - 68
Food and Drink - Spring 2014 - 69
Food and Drink - Spring 2014 - 70
Food and Drink - Spring 2014 - 71
Food and Drink - Spring 2014 - 72
Food and Drink - Spring 2014 - Cover3
Food and Drink - Spring 2014 - Cover4
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue4b
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue4a
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue3
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue3b
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue3A
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue2
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue2b
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue2a
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue1
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol19_issue1a
http://www.nxtbook.com/nxtbooks/knighthouse/youngsmarketco
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol18_issue4
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol18_issue3
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol18_issue2_2
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol18_issue2
http://www.nxtbook.com/nxtbooks/knighthouse/fd_vol18_issue1
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2017winter_v2
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2017winter
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2017fall
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2017summer
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2017springvol2
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2017springvol1
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2016wintervol2
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2016wintervol1
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2016fall
http://www.nxtbook.com/nxtbooks/knighthouse/fd_2016summer
http://www.nxtbook.com/nxtbooks/phoenix/fd_2016spring
http://www.nxtbook.com/nxtbooks/phoenix/fd_2015winter
http://www.nxtbook.com/nxtbooks/phoenix/fd_2015fall
http://www.nxtbook.com/nxtbooks/phoenix/fd_2015summer2
http://www.nxtbook.com/nxtbooks/phoenix/fd_2015summer
http://www.nxtbook.com/nxtbooks/phoenix/fd_2015spring
http://www.nxtbook.com/nxtbooks/phoenix/fd_2014winter
http://www.nxtbook.com/nxtbooks/phoenix/fd_2014fall
http://www.nxtbook.com/nxtbooks/phoenix/fd_2014summer
http://www.nxtbook.com/nxtbooks/phoenix/fd_2014spring
http://www.nxtbook.com/nxtbooks/phoenix/fd_2013winter
http://www.nxtbook.com/nxtbooks/phoenix/fd_2013fall
http://www.nxtbook.com/nxtbooks/phoenix/fd_2013summer
http://www.nxtbook.com/nxtbooks/phoenix/fd_2013spring
http://www.nxtbook.com/nxtbooks/phoenix/fd_2012fallwinter
http://www.nxtbook.com/nxtbooks/phoenix/fd_2012summer
http://www.nxtbook.com/nxtbooks/phoenix/fd_2012spring
http://www.nxtbook.com/nxtbooks/phoenix/fd_2012winter
http://www.nxtbook.com/nxtbooks/phoenix/fd_2011fall
http://www.nxtbook.com/nxtbooks/businessmedia/fd_20110708
http://www.nxtbook.com/nxtbooks/businessmedia/fd_20110506
http://www.nxtbook.com/nxtbooks/businessmedia/fd_2011summer
http://www.nxtbook.com/nxtbooks/businessmedia/fd_2011spring
http://www.nxtbook.com/nxtbooks/businessmedia/fd_2010winter
http://www.nxtbook.com/nxtbooks/businessmedia/fd_2010fall
http://www.nxtbook.com/nxtbooks/businessmedia/fd_2010summer
http://www.nxtbook.com/nxtbooks/businessmedia/fd_2010springsummer
http://www.nxtbook.com/nxtbooks/businessmedia/fd_2010spring
http://www.nxtbook.com/nxtbooks/businessmedia/fd_2010winterspring
http://www.nxtbookMEDIA.com