Monster Beverage Suit Against City Attorney of San Francisco Survives Motion to Dismiss

A federal court in California has narrowed the issues in litigation filed by
Monster Beverage Corp. against Dennis Herrera, San Francisco’s city attorney,
granting in part and denying in part Herrera’s motion to dismiss. Monster
Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., order entered
August 22, 2013). Additional details about the dispute between the litigants
appear in issues 461, 482 and 483 of this Update.

The court rejected Herrera’s claims that Monster Beverage lacked standing to
bring a declaratory judgment action as to issues raised by his threats to sue
the company if it fails to change its energy drink products by reducing the
caffeine levels and to alter its labeling and advertising. The court also found
that the issues are ripe, stating “The dispute here is not abstract and the
lawsuit is not premature. The issue here, whether Monster must comply with
Herrera’s demands pursuant to California state laws, is fit for judicial decision.
If the Court were to withhold consideration, then Monster would be forced
either to comply with Herrera’s demand, or be sued.”

The court also determined that it was not required to dismiss the action on
the basis of Younger abstention, because, as Herrera argued, Monster had
engaged in “forum shopping and gamesmanship,” a contention with which
the court disagreed, or on the ground that Herrera has a right to petition
under the Noerr-Pennington doctrine. As to the latter, the court stated,
“Monster does not seek to impose liability on Herrera for sending a demand
letter. Rather, Monster seeks declaratory judgment on the legal issues raised
in the demand letter.”

The court agreed to dismiss Monster’s void-for-vagueness claim and its
Commerce Clause claim with prejudice, but found that the company was
entitled to bring claims under the First Amendment, preemption claims to
the extent that Herrera seeks to impose more than required by the Food and
Drug Administration (FDA), and primary jurisdiction, finding, “Monster has
sufficiently alleged that the FDA has primary jurisdiction because the FDA has
special competence over the matters at issue in this case” and “has taken an
interest in investigating the matters at issue here. In fact, Herrera urges the
FDA to take action regarding energy drinks and acknowledges that the FDA
has launched an investigation into these products.”