Monster moved to strike the complaint a month after a federal judge dismissed a lawsuit that the company filed against San Francisco's city attorney Dennis Herrera.

Josh Long, Associate editorial director, Natural Products Insider

January 31, 2014

3 Min Read
Monster Energy: Food Law Preempts Herrera's Lawsuit

SAN FRANCISCOMonster Beverage Corp. wants a state judge to throw out a complaint filed against it by San Francisco's city attorney Dennis Herrera.

In court papers filed on Jan. 15, Monster argued Herrera's theories are preempted by federal law, barred because they fall under the authority of the U.S. Food and Drug Administration (FDA) and/or fail to state a claim under California law.

Monster moved to strike the complaint a month after a federal judge dismissed a lawsuit that the company filed against Herrera. Herrera said his office was engaged in negotiations with the company to broker an agreement to end marketing practices targeting children when Monster filed suit last year.

Herrera has until Feb. 5 to file a response to Monster's motion to strike the complaint, a spokesperson for the city attorney's office said.

Last year, Herrera sued Monster in California Superior Court in San Francisco County. The lawsuit alleged the largest U.S. manufacturer of energy drinks has violated the California Sherman Food, Drug and Cosmetic Law and Unfair Competition Law.

Monster has been accused of mislabeling its energy drinks as dietary supplements, selling unsafe beverages and engaging in misleading business practices by marketing to children and teens.

Herrera also claimed Monster has failed to warn consumers about the health consequences of drinking its beverages, promotes unsafe consumption, encourages individuals to take its products with alcohol and makes misleading claims about the benefits of its drinks.

The Federal Food, Drug, and Cosmetic Act (FDCA) preempts Herrera's claims that Monster's energy drink is misbranded as a dietary supplement, the company argued in court papers. Monster also said the issue falls within FDA's authority, triggering a legal doctrine known as "primary jurisdiction". (Monster previously labeled its energy drink as a dietary supplement; last year, the company began labeling its products as a conventional food and the process was largely completed by the end of the summer, according to a company spokesperson).

In a private class-action lawsuit that asserted similar claims against Monster, a federal judge dismissed many of the claims based on a finding that they were preempted by the FDCA and fell within FDA's jurisdiction, the company argued in court papers.

Herrera has alleged there is no evidence that caffeine in Monster's drinks satisfy a federal standard known as GRAS (generally recognized as safe) that California law has incorporated by reference. Monster has countered that such allegations must be dismissed because FDA has launched an investigation into the safety of energy drinks that contain caffeine.

"Dismissal is particularly appropriate now that the agency's investigation into the safety of caffeine-containing energy drinks is well underway," Monster's attorney Dan Marmalefsky of Morrison Foerster wrote.

A hearing on the motion and a similar request has been set for March 4. The case is People of the State of California ex rel. Dennis Herrera, San Francisco City Attorney v. Monster Beverage Corporation, Case No. CGC-13-531161.

In a complaint filed last year against Herrera, Monster had argued that San Francisco's attempts to regulate energy drinks was preempted by the FDCA and were unlawful for other reasons. On Dec. 16, U.S. District Judge Virginia Phillips dismissed the complaint, finding that it was barred by a separate federal law known as the Anti-Injunction Act.

About the Author(s)

Josh Long

Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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