Pennsylvania residents have filed a putative statewide class action in federal court against the company that makes 5-Hour ENERGY® drinks, claiming that they are promoted as a “healthy vitamin-filled energy drink” but are “nothing more than a shot of caffeine.” Thompson v. Innovation Ventures, LLC, No. 13-336 (W.D. Pa., filed March 7, 2013).

The plaintiffs allege that label representations—“Hours of energy now—no crash later” and “Sugar free”—send a message to consumers that the product “will provide five hours of sustained energy within minutes without experiencing any negative ‘crash’ side effects later.” To the contrary, they claim, this “no crash later” representation is false “as admitted on the Defendant’s website and hidden in microscopic language on the back of the bottle which reads: ‘No crash means no sugar crash.’” According to the complaint, more than 25 percent of product users “suffer a caffeine crash.”

Claiming purely economic losses and seeking class certification, the plaintiffs
allege breach of express warranty (in trespass), breach of implied warranty
of merchantability (in trespass) and violations of Pennsylvania Unfair Trade
Practices and Consumer Protection Law. They seek damages, injunctive relief,
attorney’s fees, and expenses.

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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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