Oregon, Washington and Vermont have filed lawsuits against the makers of the energy drink 5-Hour Energy for making “deceptive” marketing claims. More states are expected to follow.
The defendants in the cases are Living Essentials, which manufactures, markets, distributes, advertises and sells 5-Hour Energy, and Innovation Ventures, which developed the formula for the drink in 2004 and is the worldwide, exclusive licensee of the trademark, copyright and trade dress (the visual appearance of a product or its packaging).
According to the Oregon complaint, the companies have violated Oregon’s Unlawful Trade Practices Act by promoting the product with “claims that are false, misleading and/or unsubstantiated by competent, reliable scientific evidence.”
The suits take issue with claims about what 5-Hour Energy actually does, whether consumers experience a “crash,” whether it’s recommended by doctors and whether it’s appropriate for adolescents ages 12 and older.
A large point of contention is whether 5-Hour Energy gives consumers benefits such as extra energy, alertness or focus. The product’s manufacturers have made claims that it’s “packed with B-vitamins for energy and amino acids for focus” and “enzymes to help you feel it faster.”
“[I]n reality the only significant effect from the product comes from its concentrated dose of caffeine,” states the Oregon complaint.
The next issue relates to product ads claiming “hours of energy now, no crash later,” and the states point out that the companies’ own research showed that 24 percent of consumers did experience a crash. The National Advertising Division of the Council of Better Business Bureaus recommended that the “no crash” claims be discontinued in 2009.
After that, the companies added an asterisk to the “no crash” claim to qualify it as “no crash means no sugar crash.”
While 5-Hour Energy’s much-criticized “Ask Your Doctor” advertising campaign is meant to assure consumers that the product is beneficial and safe, the states assert that the product’s “3,000 doctors” ad misleadingly portrays the results of the study, which used “unsound methodology.”
Lastly, the lawsuit argues that 5-Hour Energy should not be marketed to teenagers because the makers have not provided any evidence that it is safe for them. There is no caffeine tolerance level established for kids, and, according to the American Academy of Pediatrics, “caffeine and other stimulant substances contained in energy drinks have no place in the diet of children and adolescents.”
“When companies are being bullied by someone in a position of power, these companies roll over, pay the ransom, and move on. We’re not doing that,” said 5-Hour Energy spokeswoman Melissa Skabich in a statement. “The Attorneys General are grasping at straws, and we will fight to defend ourselves against civil intimidation.”
All three states are seeking injunctions prohibiting 5-Hour Energy’s alleged “deceptive” marketing and restitution for consumers. Oregon, Vermont and Washington are also seeking $25,000, $10,000 and $2,000 penalties, respectively, for each violation against state consumer protection laws.© Food Safety News