A California federal court has dismissed without leave to amend claims that the makers of 5-Hour Energy—Innovation Ventures LLC, Living Essentials LLC, Manoj Bhargava, and Bio Clinical Development Inc.—falsely advertised their product as boosting its users’ energy levels with B-vitamins and amino acids rather than caffeine. In re: 5-Hour Energy Mktg. & Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered January 22, 2015).

The plaintiffs argued that the 5-Hour Energy makers downplayed the caffeine content in favor of attributing the product’s energy source to vitamins and other ingredients, and they included descriptions of five commercials containing the allegedly misleading statements. The court found that they failed to show what statements actually misled them, and it was also unpersuaded by the argument that the plaintiffs were exposed to a common message and thus did not need to specify which statements they relied upon to their detriment, so it dismissed without leave to amend the fraud-based claims “to the extent that they are based on any off-label representations.” The court also dismissed breach-of-express-warranty claims for the failure to provide adequate notice because the complaint was insufficient to serve as notice.

 

Issue 553

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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