States Sue 5 Hour Energy Makers

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Three states have sued the makers of 5-Hour Energy over advertising claims the product is safe for teenagers and does not cause a crash common in other energy products. Oregon, Washington and Vermont filed suits on July 17, seeking permanent injunctions against the Farmington Hills, MI-based parent companies Living Essentials and Innovation Ventures. The suit follows news from early 2014 that Oregon and 32 other states had opened an investigation into the advertising and marketing of 5 Hour Energy.  The Oregon Department of Justice indicated other states may follow with similar lawsuits.

“This lawsuit is about requiring truth in advertising," said Ellen Rosenblum, attorney general for Oregon. “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."

In addition to concern over the “no crash" claim, Oregon’s suit, filed in Multnomah Circuit Court, also targeted the way the product touts being recommended by doctors and how it is portrayed as safe for adolescents 12 years of age and older.

The Washington suit, filed in King County Superior Court, echoed the Orgeon concerns, however, the suit also challenges the representation that energy comes from the “Energy Blend" in the regular version of the product and from vitamin and amino acids in the “decaf" version, arguing the energy really comes from caffeine in both versions.

“We believe the ‘energy’ provided by 5-hour ENERGY® products is derived solely from caffeine, not from vitamins and amino acids as their ads claim," said Bob Ferguson, attorney general for Washington state. “In addition, we believe the ‘energy blend’ does nothing and the ‘no sugar crash’ statement is misleading. I will not stand by and see Washington consumers subjected to deceptive advertising."

The company has long been criticized for its failure to disclose the amount of caffeine in its “Energy Blend," which also contains taurine, L-tyrosine, L-phenylalanine and citicoline.

Ferguson said his office reviewed the scientific evidence provided by the company during the investigation, but found the evidence lacking. It also found 5 Hour Energy ads to be deceptive and filled with unfair representations.  The Washington suit seeks restitution for consumers, a permanent injunction of deceptive marketing practices, civil penalties up to $2,000 per violation of the Consumer Protection Act, and recovery of investigative and attorney fees.

The parent companies for 5 Hour Energy responded to the lawsuits by promising to defend itself. “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," the company said, in its official statement. “The Attorneys General are grasping at straws, and we will fight to defend ourselves against civil intimidation. The suits allege that the only ingredient in 5-hour ENERGY that has any effect is the caffeine.   If so, are the Attorneys General going to sue Starbucks for selling coffee?"

This is not the first lawsuit against 5 Hour Energy for its advertising and marketing practices, including its no crash claim. The National Advertising Division (NAD) or the Better Business Bureau (BBB) tried to work with 5 Hour Energy marketers on its claims and other practices, but announced in early 2013 it was not satisfied with the company’s response and would turn the case over to the FTC. When contacted by INSIDER, FTC said only that it was aware of the concerns about energy drinks but had no comment at this time.

While FTC has not taken any public stance on 5 Hour Energy, FDA has said it has logged more than 90 adverse event reports involving the product, including 13 deaths. Based on these reports, FDA began investigating 5 Hour Energy, but has not yet taken any action.

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