The U.K. Cabinet Office has begun an open consultation on general health policies, including nutrition initiatives. The consultation includes an announcement that the government will ban the sale of energy drinks to children under 16, with the full policy to be announced "in our consultation response shortly." The consultation response will also include details of a proposed policy on "making calorie labelling mandatory in the out-of-home sector, such as restaurants, takeaways and cafes." Further, the government has identified five areas of the country that will test programs to restrict advertising for foods high in fat, sugar and salt, incentivize business to "improve their retail offer," improve accessibility and affordability of healthy foods and "create healthier food environments through the planning system." The consultation also includes plans for "infant feeding, clear labelling, food reformulation improving the nutritional content of foods, and support for individuals to achieve and maintain a healthier weight."
The U.K. Advertising Standards Authority (ASA) has ruled that Red Bull Co. made unauthorized health claims about purported benefits of its energy drink on mental focus and concentration. The company's subway advertisement featured cartoon women in an office setting with the text "The Secret to Finishing Early." The ad referenced a consumer initiative encouraging workers to leave the office early one September 2018 day. "The ASA considered that while the ad’s tone was light-hearted, the scenario it presented of being overwhelmed or busy at work was one that would be familiar and relatable to consumers," the agency's assessment summary states. "While we understood that the ad was intended to be part of a marketing initiative aimed at encouraging consumers to improve their productivity and leave at 4 pm on a specific day, we considered that the penultimate line of the poem, '… to leap every hurdle a hectic day brings'…
England's Department of Health and Social Care has opened a consultation on whether the country should ban the sale of energy drinks to children. The consultation requests comments on (i) "what products should be included in any restrictions," (ii) "what age limit a ban should apply to," (iii) "whether sales of energy drinks from vending machines should be restricted" and (iv) "whether there are any changes that would be more appropriate than a ban on sales to children or that could be applied as well as a ban." The consultation cites the effects of sugar and caffeine on children as concerns triggering the proposed ban. Scotland, Wales and Northern Ireland would not be affected by any actions England takes pursuant to the consultation.
The Journal of Nutrition Education and Behavior has published a study in which youth aged 12-25 suggested strategies to reduce youth energy-drink consumption. Jacinta Francis, et al., “Informing Intervention Strategies to Reduce Energy Drink Consumption in Young People: Findings From Qualitative Research,” Journal of Nutrition Education and Behavior, October 2017. Researchers reportedly found that while the subjects were familiar with energy drinks, they did not agree as to whether the term included coffee, sports drinks, nutritional supplements and soft drinks. Some were apparently aware that the drinks contained caffeine and sugar, the study noted, but few were aware they contained other ingredients or could explain how the drinks allegedly work. The participants also said advertising, promotions and peer pressure influenced consumption. They suggested five strategies to reduce consumption: (i) restrictions on sales and availability; (ii) changes in packaging; (iii) price increases; (iv) reducing visibility in retail outlets; and (v) research…
Red Bull GmbH has filed a notice of opposition with the Trademark Trial and Appeal Board (TTAB) alleging that a mark used by Bull By The Horns Fitness is too similar to its own name, mark and logo. Red Bull GmbH v. Bull By The Horns Fitness, No. 91236158 (TTAB, filed August 16, 2017). The fitness club applied for a mark that shows a man holding a sideways-facing charging bull, while Red Bull’s marks also show a sideways-facing charging bull. Red Bull argues that its mark has been extensively used in sports and fitness promotion and training services and opposes the application for likelihood of confusion, dilution and false suggestion of a connection. Issue 645
A federal court has denied class certification to plaintiffs in multidistrict litigation involving false advertising claims for 5-Hour Energy® drinks, finding they failed to allege that common issues predominate over individual ones, including a common definition of “energy.” In re 5-Hour Energy Mktg. and Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered June 7, 2017). The plaintiffs could not establish the definition of “energy,” the court found, because they defined it as “caloric energy” based on U.S. Food and Drug Administration dietary-supplement standards but did not show that consumers interpret “energy” the same way. In addition, plaintiffs in California, Missouri and New Mexico proposed a theory of liability based on underfilling, alleging that the product provided only 3.7 minutes of caloric energy instead of five hours, while plaintiffs in other states did not argue for the theory. Issue 637
The Seattle City Council has approved a tax on distributors of sugar-sweetened beverages (SSBs) proposed by the city’s mayor. SSBs covered by the tax include sports, fruit, energy and soft drinks as well as flavored syrups commonly used in coffee drinks. Baby formula, medications, weight-loss drinks, fruit juice and diet soft drinks are exempt from the tax. See Seattle Times, June 5, 2017. Issue 637
Red Bull North America lost its motion to dismiss a $60-million wrongful death lawsuit involving a man who drank four cans of the energy drink every day for five years. Lemley v. Red Bull N. Am., No. 17-33 (S.D. Ga., order entered May 16, 2017). The suit alleges that reports dating back to 2000 show energy drinks cause fatal cardiovascular injuries to consumers. The court found the plaintiff had adequately pleaded the elements of fraud and the complaint stated a valid claim for relief. The U.S. Food and Drug Administration released adverse reports involving energy drinks in 2012—including reports of cardiovascular symptoms—but its investigation found no causal link between the drinks and the alleged injuries and deaths. In addition to damages for tort claims, the plaintiff is seeking $30 million in punitive damages. Issue 635
Energy-drink company Rockstar faces a putative class action alleging the company underfilled cans of its coffee drinks, giving the company an unfair competitive advantage and shortchanging consumers. Podawiltz v. Rockstar, Inc., No. 17-0477 (D. Ore., filed March 26, 2017). The plaintiff claims he bought several cans of Rockstar’s coffee drinks labeled “15 fl oz [473 ml],” but that independent lab testing showed the cans contained an average of 443 milliliters, about six percent less. For an alleged violation of the Oregon Unlawful Trade Practices Act, the plaintiff seeks class certification, injunctive relief, an accounting, restitution, damages and attorney’s fees. Issue 629
Two people have been convicted of conspiracy in charges related to a scheme to distribute counterfeit 5-Hour Energy drinks. United States v. Shayota, No. 15-0264 (N.D. Cal., verdict entered November 28, 2016). The couple, Joseph and Adriana Shayota, produced several million bottles of a drink manufactured under unsanitary conditions and labeled the drink with 5-Hour Energy's packaging. Before beginning that scheme, the couple reportedly bought 5-Hour Energy drinks intended for the Mexican market, repackaged them and sold them in the United States for a price well below the retail price. Six other defendants pleaded guilty to similar charges, and 5-Hour Energy maker Living Essentials won a $20-million civil judgment in March 2016. See Los Angeles Times, November 30, 2016. Issue 624