OPINION:
It’s easy to get bored with hypocrisy in Washington, where politicians fail to be models of intellectual consistency. The Constitution protects members of Congress from lawsuits over anything they say on the job, but big, consumer-facing companies risk it all when they try to have something both ways.
For-profit businesses get sued all the time over their failed credibility. An edgy company that sells water for $1.80 a can is finding that out.
Liquid Death, the counterculture canned water company, expects to line its pockets with $340 million this year on the strength of a yearslong “Death to Plastic” campaign. The problem? According to a new class-action lawsuit in California, every aluminum can it sells is lined with plastic. The complaint, filed in Alameda County, is targeting the company with several violations of law, including unlawful and unfair business practices that specifically allege fraudulent claims, deception, and misleading and false advertising.
The 60-page court filing is full of picture examples of Liquid Death promoting its slogan and the death wish for plastic bottle packaging. Just one-tenth of a millimeter inside the can surface is essentially a plastic bottle wrapped in aluminum. Liquid Death isn’t actually anti-plastic. It hates only the plastic you can see. (Go to KickTheCan.org for the reveal.)
A little plastic in your can is absolutely necessary. Aluminum is a potent neurotoxin, and the plastic shield stops it from leaching into Liquid Death’s water. Just about every aluminum can you’ve ever touched has had one of these giant drink condoms inside.
The Wrigley Co. is a classic example of consumer deception. It claimed its Eclipse Gum and mints with magnolia bark extract could kill germs that cause bad breath. The claim was unfounded. The Council of Better Business Bureaus also examined Wrigley’s marketing claims and concluded that the advertisements were deceptive. Wrigley agreed to pay more than $6 million to settle a class-action lawsuit.
Dannon claimed its Activa yogurt was “scientifically proven” to help regulate digestion and boost the immune system. A class-action lawsuit contested the science. The result was a $45 million settlement when Dannon failed to prove its claims.
Skechers advertised that its Shape-Ups shoes would help consumers lose weight and tone muscles. Those claims of a superior product were found deceptive. Skechers settled a class-action lawsuit for $50 million.
If the lawsuit is to be taken seriously, then Liquid Death is the latest to play fast and loose with marketing imagery and credibility. It might have a harder time because its image is seven years in the making and its two-faced foundation can’t be fixed with a press release. A shift in vocabulary won’t do. The product itself is the problem, and the lawyers are circling.
Whatever happens in court, the company’s edgy image faces some tough tests. Will it matter that it built its value by declaring war against something it can’t live without? It’s hard to feel bad for Liquid Death. It built an entire punk-rock persona around “Death to Plastic,” persuaded tattooed influencers to scream it, got partners such as NASCAR and Live Nation to take part in the charade, all while slyly moving the plastic from the outside to the can inside.
This isn’t rebellion. These people aren’t bringing death to plastic. They are giving it witness protection and a new passport.
Watch for this to go national, and soon. California is ground zero for novel lawsuit theories, but a Federal Trade Commission rule is baked into this class action: Companies must evaluate their marketing claims from the point of view of a typical, reasonable consumer.
Keurig Dr Pepper recently settled class actions in the U.S. and Canada over false claims that K-Cups were “recyclable.” Contamination issues and the size of the coffee pods make that impractical, but consumers naturally thought their dark roast was part of a sustainability effort. (It wasn’t.) The Securities and Exchange Commission tacked on a $1.5 million fine for misleading investors with a green halo. The courts and the bureaucrats are primed to wade into this sort of thing.
If you’re wondering, there’s already a company trying to compete with Keurig by selling aluminum pods — and yes, they are lined with plastic.
• Pam Sederholm is the founder of Sederholm Public Affairs.
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