The Public Health Advocacy Institute (PHAI) and several other organizations have asked the Federal Trade Commission (FTC) to “investigate PepsiCo’s current ‘Win from Within’ commercial television advertisement and commercial website for its Gatorade sports drink product featuring Michael Jordan’s performance during game 5 of the 1997 NBA Finals.”
According to the letter, joined by groups such as the California Center for Public Health Advocacy, Center for Science in the Public Interest and Yale Rudd Center for Food Policy & Obesity, the ad “encourages teens to engage in dangerous behavior; sequences historical events to falsely enhance the role of Gatorade in Mr. Jordan’s game-winning athletic performance; and contains deceptive product imagery.” The letter claims that the ad targets teens by airing on cable networks appealing to teens, such as “Adult Swim, Teen Nick, ABC Family, and MTV.”
The organizations claim that the ad promotes vigorous physical activity during illness, including a “very high fever, in Jordan’s case 103 degrees.” The ad copy purportedly indicates that “Jordan ‘was able to persist’ because he had ‘the fuel to help him do it,’” an apparent reference to Gatorade®. The letter contends that game footage has been edited to lead viewers to believe that Jordan completed a three-point shot near the end of the game when he actually never returned after he was helped to the bench for the last time. Also cited as misleading is the content of the Gatorade-branded cups in the ad—evidently, in some actual game footage the liquid is clear, while the ad shows a cup filled with “vibrant orange liquid.”
Calling the ad unfair and deceptive with “the tendency or capacity to influence consumers to engage in behavior which creates an unreasonable risk of harm,” the letter cites FTC enforcement actions in other cases to support its call for an investigation. Before he began a sustained anti-obesity campaign in the new millennium, Richard Daynard, PHAI’s president and Northeastern University law professor, focused on anti-tobacco advocacy.