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…
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During a recent press conference, counsel for Monster Energy reportedly addressed claims made in a wrongful death lawsuit filed against the company by the parents of a Maryland teenager who allegedly died after consuming the company’s energy drink. The company’s experts have apparently reviewed the medical records in the case and determined that “there is no medical, scientific or factual evidence to support the Maryland medical examiner’s report of ‘caffeine toxicity’ or that Ms. Fournier’s consumption of two Monster Energy Drinks 24 hours apart contributed to, let alone was the cause of her untimely death.” Apparently, no blood tests were conducted to confirm the examiner’s finding, and the 14-year-old had pre-existing conditions—an enlarged heart, a vascular form of connective tissue disease, mitral valve prolapse, and myocardial fibrosis—that purportedly increased her risk of cardiac arrest and sudden death. The company was apparently motivated to call the press conference after a Chicago…
During a hearing to discuss a prohibition on energy drinks in the city, a Chicago City Council committee reportedly decided to further consider the matter at a later date before taking a vote. The proposed ordinances include one introduced in January 2013 by Alderman Edward Burke that would prohibit the sale of drinks with 180 or more milligrams of caffeine and containing the alleged stimulants taurine or guarana. Committee Chair George Cardenas and Alderman William Burns previously introduced another proposal that would prohibit the sale of energy drinks to anyone younger than age 21. Details about Burke’s proposal appear in Issue 468 of this Update. See Chicago Tribune, March 6, 2013; TimeNewsFeed.com, March 7, 2013.
The Journal of the American Medical Association (JAMA) recently highlighted energy drinks in its December 19, 2012, online issue, where two commentaries discussed caffeine-related adverse events and the risks of mixing energy drinks with alcohol. Authored by Memorial Sloan Kettering Cancer Center infectious disease specialist Kent Sepkowitz, the first viewpoint article notes that “the swift change in public perception of energy drinks from harmless mild stimulant to lethal, unregulated drug is unprecedented.” Summarizing recent cases of unintentional caffeine overdoses and caffeine poisoning, the article claims that “a person would need to ingest at least 12 of the highly caffeinate energy drinks within a few hours” to reach a lethal dose of caffeine. Sepkowitz argues, however, that this estimate does not take into account variables such as medications that may slow the metabolism of caffeine or preexisting cardiac or liver conditions “that could increase susceptibility to caffeine-related adverse events.” “The appropriate…
The Council of Better Business Bureaus’ National Advertising Division (NAD) has reportedly decided to review “no crash later” claims made by Living Essentials LLC about its caffeinated energy supplement 5-Hour Energy® after The New York Times published a January 2, 2013, article questioning the scientific evidence behind such assertions. According to media sources, NAD ruled in 2007 that Living Essentials could not support its unequivocal “no crash” claims, even though its product evidently causes less of an energy level reduction than beverages made by its competitors. As a result, Living Essentials modified its labeling to include an asterisk on its “no crash later” declaration, but NAD has apparently advised the company to drop the claim altogether or submit to a compliance review. See Law360, January 3, 2013. The claim now facing NAD scrutiny also caught the attention of Times writer Barry Meier, who noted that energy drink manufacturers demand premium prices…
New Canadian regulations that took effect January 1, 2013, have reclassified energy drinks as food instead of natural health products and capped their caffeine content at 180 mg per serving. First proposed in 2011, the regulations aim to address concerns that consumers imbibing such beverages could exceed the maximum caffeine intake levels recommended by Health Canada. “Therefore, Health Canada conducted a scientific assessment of the potential hazards and exposure associated with the common ingredients found in these caffeinated beverages (including caffeine, vitamins, minerals, taurine etc.),” stated the agency, which ultimately reported that children and adolescents were “most at risk of exceeding Health Canada’s Recommended Maximum Daily Intakes (RMDI) for caffeine because of the volumes potentially consumed and the lower RMDI established for these populations, in comparison to adults.” In particular, the new regulations establish “an initial maximum limit for total caffeine of 400 mg per liter with a maximum amount…
In response to a series of letters from Senators Dick Durbin (D-Ill.) and Richard Blumenthal (D-Conn.), Food and Drug Administration (FDA) officials have confirmed that the agency is currently reviewing the safety of energy drinks containing caffeine and other ingredients that act as stimulants and may require regulatory action if evidence of a health risk is found. Since April, both senators have urged FDA to take action to regulate energy drinks and to investigate the safety of ingredients with stimulant properties in combination with caffeine in energy drinks, particularly as they affect young consumers. In a recent press release, the senators note that “There is very clearly a lack of understanding about the health effects of energy drinks and their ingredients especially on children and adolescents,” and although they are glad to see that FDA is undertaking a review, more needs to be done and quickly. “For instance, FDA can and…
The Center for Science in the Public Interest (CSPI) has written a letter to the Food and Drug Administration’s Office of Compliance, claiming that caffeinated snack foods violate the agency’s determination “that caffeine is generally recognized as safe only in cola-type beverages and only at concentrations at 0.02 percent or less (about 72 mg per 12 oz.).” Singling out a new line of Frito-Lay’s Cracker Jack® snacks, Kraft’s MiO Energy “water enhancer” and Jelly Belly’s “Extreme Sport Beans,” CSPI alleges that these products could represent “the beginning of a craze in which many companies, large and small, disregard FDA’s regulation and begin adding caffeine to all kinds of foods and beverages.” In particular, the consumer group has raised concerns that caffeinated snacks like “Cracker Jack’D” are child-friendly even if they are not marketed directly to children. “Kids will naturally be attracted to a tasty, finger-friendly snack food packaged and advertised with…
San Francisco City Attorney Dennis Herrera has sent a letter to Monster Beverage CEO Rodney Sacks, asking the company to provide proof that the large dosages of caffeine contained in its popular Monster energy drinks are “completely safe” for consumption by adolescents and adults. Monster Beverage Corp. has come under increased scrutiny following reports last week to the Food and Drug Administration (FDA) that the product may be linked to as many as five deaths since 2009. Herrera issued the letter under provisions of California’s Unfair Competition Law that empowers city attorneys to demand evidence for purportedly fact-based advertising claims. “Although you claim that Monster Energy drinks are ‘completely safe,’” Herrera writes, “there is increasing evidence that the high caffeine levels in your products are dangerous, particularly for the youth whom you target with your advertising. As numerous scientific studies have concluded, consuming large amounts of caffeine can have serious health…
U.S. Senators Richard Durbin (D-Ill.) and Richard Blumenthal (D-Conn.) have for the third time this year challenged the Food and Drug Administration (FDA) “to take immediate action” to address public concerns about energy drinks. In their October 26, 2012, letter to FDA, the senators write that they are “extremely concerned by reports of five deaths following the consumption of Monster energy drinks and a recent study showing that many energy drinks labels do not provide caffeine information to consumers.” Durbin and Blumenthal’s letter refers to a new study issued by Consumer Reports allegedly revealing that five of the 27 top-selling energy drinks contain caffeine at levels at least 20 percent above the listed amounts, with 11 beverages failing to specify caffeine content altogether. “We do not know enough about the effect of caffeine on children and young adults, yet energy drinks are marketed directly to kids without the oversight that…
