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…
Tag Archives energy drinks
Although the typical energy drink user is reportedly young and male, a recent news source indicates that a new demographic is emerging as a top consumer of these beverages—busy, young mothers. Recent data from Nielsen reveal that busy mothers and their households—categorized as “Young Bustling Families”—are more likely to drink energy drinks than the average U.S. household, with a purchasing index of 150, higher than both “Young Transitionals” or young adults just out of college, and “Independent Singles” in their 20s and 30s. In response to these new consumption patterns, some energy drink makers have developed “women-friendly” energy drinks, including a pink lemonade-flavored beverage from which a portion of sales are donated to the Avon Foundation Breast Cancer Crusade, and a beverage with no sugar or calories that apparently features a sweeter, more refreshing flavor, and is packaged in a white can with “feminine design elements.” See Convenience Store News,…
The U.S. Senate Committee on Commerce, Science, and Transportation conducted a July 31, 2013, hearing to consider issues relating to the purported marketing of energy drinks to children and the alleged adverse health effects attributed to the use of products with elevated levels of caffeine and other stimulants. Among those testifying were Red Bull North America, Inc. Vice President and General Manager Amy Taylor, Monster Beverage Corp. Chair and CEO Rodney Sacks and Yale University Rudd Center for Food Policy & Obesity Senior Research Scientist Jennifer Harris. Sens. Jay Rockefeller (D-W.Va.), Richard Durbin (D-Ill.) and Richard Blumenthal (D-Conn.) challenged the companies’ marketing practices and referred to data showing a surge in emergency room visits from consumption of the products. The executives defended their products, saying they had been proven safe and were targeted to the 18- to 34-year-old market. Sen. John Thune (R-S.D.) thanked the chair for calling the hearing,…
A woman who claims that her 19-year-old son died as a result of consuming at least two 16-oz. cans of Monster Energy® drinks every day for three years has filed a survival and wrongful death action against the company. Morris v. Monster Beverage Corp., RG1368528 (Cal. Super. Ct., Alameda Cty., filed June 25, 2013). According to the complaint, the young man went into cardiac arrest on July 1, 2013, “[w]hile engaged in sexual activity with his girlfriend,” and efforts to revive him were unsuccessful. The autopsy report allegedly attributed his death to “cardiac arrhythmia due to cardiomyopathy.” The plaintiff focuses on the beverage’s caffeine and other ingredients that have purportedly been shown to produce adverse health effects, “including cardiac arrest.” The plaintiff alleges strict liability—design defect, failure to warn—negligent design, manufacture, sale, and failure to warn; concealment, suppression or omission of material facts; breach of implied warranties; punitive damages; and…
The companies that make 5-Hour Energy have reportedly expanded a quest to keep their recipe from disclosure by seeking the application of a Tennessee law protecting trade secrets to requests made by the Tennessee Department of Commerce and Insurance and state attorney general for all of the product’s ingredients and their amounts. Information about the suit that Living Essentials and Innovation Ventures filed in Oregon seeking the same relief appears in Issue 488 of this Update. Thirty-three states have launched an investigation into 5-Hour Energy, which purportedly contains more caffeine and other stimulant ingredients than other similar products. See The Tennessean, June 24, 2013.
The American Medical Association (AMA) House of Delegates has formally adopted three new resolutions at its 2013 Annual Meeting in Chicago, Illinois, that aim to define obesity as a disease, prohibit the marketing of energy drinks to adolescents younger than age 18, and end the eligibility of sugar-sweetened beverages (SSBs) under the Supplemental Nutrition Assistance Program (SNAP). According to news sources, delegates reached the decision to recognize obesity “as a disease state with multiple aspects requiring a range of interventions to advance obesity treatment and prevention” after hours of debate raised questions about how physicians and policymakers will use the declaration to counter rising obesity rates in the United States. “Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” said AMA board member Patrice Harris in a statement announcing the resolution. “The AMA is committed…
According to news sources, the companies that make 5-Hour Energy have filed a complaint in an Oregon state court seeking a declaration that the Oregon Department of Justice (DOJ) is not entitled to what the companies contend are trade secrets, that is, the amounts of ingredients used to make the energy shots. Oregon’s DOJ is apparently part of an executive committee leading a 33-state investigation into Innovation Ventures, LLC and Living Essentials, LLC and has demanded a list of ingredients, including their amounts, to decide whether the companies were justified in claiming that use of the product does not lead to a “crash.” While the companies reportedly provided the DOJ with copies of materials submitted to the National Advertising Division of the Council of Better Business Bureaus to support their ad claims in 2007, they redacted the amounts, but not the ingredients, claiming that they are “highly confidential and proprietary…
San Francisco City Attorney Dennis Herrera has filed a consumer-fraud lawsuit on behalf of the people of the state of California against Monster Beverage just one week after the company sued Herrera to halt his investigation into company advertising practices and demands. People v. Monster Beverage Corp., No. CGC-13-531161 (Cal. Super. Ct., San Francisco Cty., filed May 6, 2013). According to Herrera’s press release, Monster Beverage’s preemptive suit constituted “‘forum shopping’ and a bid to win the race to the courthouse.” Details about Monster Energy’s lawsuit appear in Issue 482 of this Update. The new lawsuit alleges that the company “aggressively markets” its energy drink products to children and teenagers, fails to adequately warn consumers about the purported risks of consuming such products, and illegally sold its beverages until earlier this year as a dietary supplement. According to the complaint, product labels claim that three 16-ounce cans can be safely…
Monster Beverage Corp. has filed a complaint for declaratory and injunctive relief against San Francisco’s city attorney, who launched an investigation into the company’s alleged marketing of energy drinks to children in October 2012. Monster Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., E. Div., filed April 29, 2013). According to the complaint, City Attorney Dennis Herrera has threatened to sue the company under the Sherman Law and California’s consumer protection laws if Monster does not agree to reformulate its product to lower the caffeine content, provide adequate warning labels, cease promoting over-consumption in marketing, cease using alcohol and drug references in marketing, and cease marketing to minors. The energy beverage maker contends that Herrera’s investigation and demands are preempted by federal law and represent an attempt to “usurp FDA’s [the Food and Drug Administration’s] regulatory authority” contrary to the primary-jurisdiction principle. Monster also claims that Herrera’s conduct violates the…
The National Toxicology Program (NTP) recently released its peer-reviewed report on the toxicology and carcinogenesis of Ginkgo biloba, “an herbal remedy and dietary supplement purported to improve memory and brain function.” Based on long-term studies in which researchers “deposited solutions of Ginkgo biloba extract in corn oil directly into the stomachs of male and female mice and rats five times a week for two years,” the report concluded that animals exposed to Ginkgo biloba extract “experienced increased rates of a variety of lesions in the liver, thyroid, and nose” as well as “increased incidences of cancers of the thyroid gland… in male and female rats and male mice and liver cancers in male and female mice.” Citing these studies, the Center for Science in the Public Interest (CSPI) has since issued a warning to consumers, advising them to avoid a number of products, including energy drinks, that list ginkgo as…
