Consumers are winning in the digital age. And marketing teams are being forced to think outside of the box.

According to a recent study, people would rather give up their spouse, or go to prison if it means they won’t lose their smartphone. On top of that, consumers are “cutting” or “shaving” the cord to traditional television and demanding more flexibility in how they view content. Nielsen data shows that between 2011 and 2017, traditional TV viewing by 18-24 year olds dropped by almost 12 hours a week, or by roughly 1 hour 40 minutes per day. In addition, online advertisers are employing targeted advertising whereby consumers are exposed to ads that reflect their interests. As a consequence, consumers are becoming increasingly difficult for marketers to reach and businesses are struggling to find ways to bridge this gap.

Advergaming – advertising a brand-name product by featuring it in downloadable game, such as a mobile device app – may be a powerful tool. In comparison to traditional TV ads which may garner the attention of viewers for only a few minutes, mobile apps present companies with the opportunity to have consumers internalize their desired messages, repeatedly and for extended periods of time, while playing games. Indeed, Chipotle effectively used this tool when it launched a widely successful mobile device game to promote its Food and Integrity program. It has been reported that the game (and its anti – factory farming message) was downloaded more than 250,000 times in its first four days of release.

However, the messages should remain truthful and non-misleading and businesses must take care to ensure that explicit and implied messages in mobile app games do not cross the line.

We were reminded of this last summer, when the Attorney General of California sued The Gatorade Company under the state’s False Advertising and Unfair Competition Laws, for allegedly making false and misleading statements in connection with its sale of Gatorade products. “Bolt!,” the company’s free mobile app video game, depicted Olympic Gold Medalist, Usain Bolt, in a race and “[t]hroughout the race, water was inaccurately and negatively depicted as hindering the sprinter’s performance.” For example, water would slow down Bolt’s performance while Gatorade increased his speed. In addition, the “fuel meter” depicted water decreasing the athlete’s fuel while the “fuel meter” increased with Gatorade. According to the complaint, “[t]his marketing message was further made clear through the game’s tutorial which instructed its largely teen and young adult audience to ‘Keep Your Performance Level High By Avoiding Water.’”

The case settled, and The Gatorade Company agreed to pay the state $300,000 over the claims made in the app. The company also agreed to avoid marketing or advertising apps that send the misleading message that “(a) water will hinder and/or adversely affect athletic performance; (b) consuming water in general is to be avoided in favor of consuming Gatorade; (c) athletes consume Gatorade and avoid all water consumption; and (d) water consumption in general should be avoided.”

While the advertising mediums may change, the legal principles remain the same, and claims (especially those that are implied) that are disseminated through mobile gaming apps require the same level of legal scrutiny as claims made in a commercial, on a website or on product packaging. These apps present an exciting new platform for companies to reach consumers; however, as with other forms of marketing, legal risks remain.