San Francisco City Attorney Slapped with Monster Lawsuit

Josh Long, Associate editorial director, Natural Products Insider

May 2, 2013

3 Min Read
San Francisco City Attorney Slapped with Monster Lawsuit

SAN FRANCISCOMonster Beverage Corp. has asked a federal court to declare attempts by San Francisco City Attorney Dennis Herrera to regulate its energy drinks are unconstitutional, preempted by federal law and solely within the province of the U.S. Food and Drug Administration (FDA).  

Herrera has threatened to sue Monster unless the company yields to certain demands, according to a lawsuit the energy-drink giant filed against him in the U.S. District Court for the Central District of California, Eastern Division.

"As the attorney for a single municipality, Defendant has no authority to impose his views concerning whether the levels of caffeine and other ingredients in Plaintiffs' nationally-distributed energy drinks are Generally Recognized as Safe for their intended use, nor whether the labeling on these drinks is appropriate, nor may he prohibit Plaintiffs from selling their products in cans larger than 16 ounces," Monster declared in the complaint for declaratory and injunctive relief.

Yet the San Francisco official is attempting to impose the above restrictions, according to Monster.

Herrera wasted no time responding to the lawsuit. "I strongly disagree with Monster's legal contention," he said in a press release, "and I intend to litigate this case aggressively to reform their irresponsible marketing and business practices, which I believe clearly violates California's consumer protection laws."

In October, Herrera's Consumer Protection Unit launched an investigation into Monster's business and marketing practices. In an Oct. 31 letter addressed to Monster Beverage Corp. CEO Rodney Sacks, Herrera raised concerns about caffeine in energy drinks, citing five deaths potentially related to the company's beverages.

The FDA is investigating the safety of energy drinks, including the reported deaths, although the agency has reiterated that the "adverse event reports" linked to Monster and other companies don't establish the caffeine-laden products were responsible for the fatalities and other medical problems.

In the lawsuit filed Monday, Monster alleged Herrera is unfairly singling out the company even though its competitors sell energy drinks with equivalent or greater caffeine content.

The company is requesting a declaration that Herrera's attempts to regulate energy drinks violates the U.S. Constitution and is preempted by the Federal Food, Drug and Cosmetic Act. Monster also is seeking to enjoin the city attorney from enforcing his demands.

On March 29, in a letter sent to Monster's attorneys, Herrera said he was troubled by the company's labeling, the safety of its caffeine levels and marketing to youths among other concerns. Herrera noted his office and Monster were scheduled to meet on May 2 to discuss potentially settling his concerns  then he was slapped with the lawsuit.

"I am disappointed that what I thought were good faith settlement overtures by Monster were actually a delay tactic designed to allow you to win the race to the courthouse," Herrera told the lawyers, Miriam Guggenheim of Covington & Burling LLP and Dan Marmalefsky of Morrison & Foerster LLP,  in an April 30 letter.

Herrera ended the letter by stating the May 2 meeting was off the table. "If settlement becomes a viable option in the future," he concluded, "we would consider meeting at that time."

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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