Potentially one for the “only in America” basket, a recent class action in the US alleged that consumers were induced to purchase Red Bull with the promise of ‘wings’ it could not actually provide. The plaintiffs argued that Red Bull had falsely represented that its energy drinks provided certain functional benefits, and through this induced consumers into purchasing and/or paying a price “premium” for those drinks over alternate sources of caffeine.

The case did not make it to court. Not on the basis that it does not actually provide wings, but because it settled in negotiation. Red Bull agreed to the establishment of a $13 million settlement fund, committed to covering up to $4,750,000 in legal fees, and to withdrawing or revising marketing material. Red Bull also committed to scientifically test any claims regarding functional benefits of its products in the future.

The settlement fund is to be used to provide $10 or two Red Bull products to the value of $15 to every customer who purchased a Red Bull product after 1 January 2002.

The term ‘mere puffery’ applies in Australia to a claim which no reasonable person would take seriously or act upon – and we would hope the “Red Bull gives you wings” slogan falls within that category. At any rate, the slogan continues to be used here.