INSIDER Law
Washington Judge Imposes Civil Penalties Against Makers of 5-hour Energy

Washington Judge Imposes Civil Penalties Against Makers of 5-hour Energy

The companies behind 5-hour Energy, which have prevailed in similar cases brought by state attorneys general in Indiana and Oregon, intend to pursue an appeal.

Living Essentials LLC and Innovation Ventures LLC, the makers of 5-hour Energy, were ordered this week to pay nearly US$4.3 million in attorneys’ fees, costs and penalties for violations of state law in a 2014 complaint brought by Washington Attorney General Bob Ferguson.

King County Superior Court Judge Beth Andrus ruled in October that the companies behind 5-hour Energy violated the state Consumer Protection Act. On Feb. 7, she ordered Living Essentials and Innovation Ventures to pay $2.18 million in civil penalties, $1.89 million in attorneys’ fees and roughly $209,000 in costs.

“The makers of 5-hour Energy broke the law in pursuit of profit," Ferguson said in a statement, “and now they are paying for it."

The judge permanently barred the makers of 5-hour Energy from making claims about their products’ biochemical or physiological effect on consumers, unless they “possess and rely upon competent and reliable scientific evidence at the time the claims, statements or representations are made." Similarly, the defendants cannot make certain claims related to caffeine and other ingredients without possessing competent and reliable scientific evidence.

Andrus also prohibited advertising or marketing claims that rely upon survey data unless the survey was “created, conducted, and evaluated in an objective manner by persons qualified to do so, using procedures and methods generally accepted in the profession to yield accurate and reliable results."

Living Essentials and Innovation Ventures, which prevailed in similar lawsuits brought by state attorneys general in Indiana and Oregon, intend to pursue an appeal in Washington.

“Unlike the two other courts that found in our favor, this court did not follow the law," the companies said in a statement. “We intend to vigorously pursue our right to appeal, and correct the trial court’s incorrect application of the law."

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