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States Sue 5-Hour Energy for Deceptive Ads

Published on Aug 28, 2014 at 8:20 am in Product Liability.

In mid-July, Oregon and other states filed a lawsuit against 5-Hour Energy Drink claiming its maker and marketers use “deceptive and misleading claims.” Oregon’s Attorney General Ellen Rosenblum filed the suit in Multnomah County Circuit Court. The suit names Innovation Ventures, LLC, the Michigan-based maker of the 5-Hour Energy drink that does business as Living Essentials, LLC,

Investigation

The suit comes after a multi-state investigation. Oregon and four other states spearheaded the work, and they were joined by a total of 33 states. Serious concerns about the product’s safety were raised after nearly 100 “adverse incident reports” were filed with the U.S. Food and Drug Administration connected with the product; they include heart attacks, deaths, and spontaneous abortion.

The FDA announced last summer it was investigating up to 13 deaths related to the 5-Hour Energy Drink. By way of explanation as to why the FDA hadn’t recalled the product, the FDA pointed out that even though a person may believe their health problem stemmed from the drink, that doesn’t prove the connection scientifically:

“It is important to note that, while those who voluntarily report an illness or injury (such as medical professionals, family members, or the consumers themselves) typically identify the product that they assume caused the injury or illness, FDA as a scientific public health agency must carefully investigate and evaluate all possible causes before deciding whether the product actually caused the medical problem.”

The states took it upon themselves to investigate the accuracy of the product’s claims. One of the main issues is the amount of caffeine in the drinks. According to CBS news:

“5-hour Energy drinks are sold in 1.9-ounce containers known as shots. While they don’t label how much caffeine is in their bottles, a Consumer Reports investigation claimed that it could range from 6 mg in their 5-hour Decaf bottles to 242 mg in their 5-hour Energy extra strength bottles.”

By comparison, a tall cup of Starbucks coffee has about 260 milligrams of caffeine.

Claims Against the Company

Two key aspects of the lawsuit are:

(1) That advertisements for 5-Hour Energy claim the product contains a unique blend of ingredients, but the only effective one is caffeine; and

(2) Ads for the drink make several claims not supported by data.

Earlier, as part of the investigation last year, the Oregon Attorney General gave the company a chance to provide proof backing up its advertising claims; those claims included:

  • that 73% of 3,000 doctors recommend the drink,
  • that people who drink it don’t experience a “crash” when the effects wear off, and
  • that the product may be suitable for people over the age of 12 and up.

The company provided some information last spring, but it blacked out many key elements. The company filed a suit in June trying to keep states from requesting information about its product.

The Oregon Attorney General said in a statement, “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.”

The makers of 5-Hour Energy provided this statement to the Portland Oregonian:

“When companies are being bullied by someone in a position of power, these companies roll over, pay the ransom, and move on. We’re not doing that. Oregon’s Attorney General, Ellen Rosenblum, is grasping at straws, and we will fight to defend ourselves against civil intimidation. Ms. Rosenblum alleges that the only ingredient in 5-hour ENERGY that has any effect is the caffeine. If so, is Ms. Rosenblum going to sue Starbucks for selling coffee? Obviously she has nothing better to do.”

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Tad Thomas - Trial Lawyer

Tad Thomas

Managing Partner

Tad Thomas has dedicated his practice to representing plaintiffs in various types of civil litigation, including personal injury, business litigation, class actions, and multi-district litigation.

After graduating with his law degree in 2000 from Salmon P. Chase College of Law at Northern Kentucky University, Mr. Thomas immediately opened his own private practice and began representing injury victims.

In 2011, Thomas Law Offices was established in Louisville, Kentucky. Over the past decade, Mr. Thomas has expanded his firm and now has offices in three additional locations: Cincinnati, Ohio, Columbia, Missouri, and Chicago, Illinois. He is also a frequent lecturer on topics like trial skills and ethics and technology.

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