The state attorneys general (AGs) of Oregon, Vermont and Washington have reportedly filed separate lawsuits against Living Essentials and its parent Innovation Ventures seeking a permanent injunction to stop allegedly misleading and deceptive advertising for 5-hour ENERGY®. According to news sources, other state AGs are expected to bring similar action; some 30 have been investigating the accuracy of company ads for the product.

Washington AG Bob Ferguson has alleged that the defendants violated the state consumer protection statute by (i) airing TV commercials with “survey results” from doctors who “recommend” the product “while misrepresenting survey results and failing to disclose key facts”; (ii) using a misleading “no sugar crash” product tagline given studies demonstrating a caffeine crash; (iii) implying that the product can be consumed by teens with the label statement, “Do not take if you are pregnant or nursing, or under 12 years of age”; and (iv) claiming that the “energy blend” in 5-hour ENERGY® and the vitamins and amino acids in Decaf 5-hour ENERGY® are responsible for the products’ energy effects when the energy is actually derived solely from caffeine.

Oregon AG Ellen Rosenblum said, “This lawsuit is about requiring truth in advertising. Plainly and simply, in Oregon you cannot promote a product as being effective if you don’t have sufficient evidence to back up your advertising claims.” A company spokesperson reportedly characterized the Oregon lawsuit’s allegations as “grasping at straws” as well as “civil intimidation” and indicated that the companies intend to mount an aggressive defense. See Oregon Department of Justice Media Release and Courier-Herald, July 17, 2014; Reuters, July 18, 2014.

 

Issue 530

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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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