Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES NEWS: Makers of 5-hour ENERGY® sued for misleading consumers, (Jul 18, 2014)

By Peter Reap, J.D., LL.M.

Washington State Attorney General Bob Ferguson filed a lawsuit today against the makers of 5-hour ENERGY®, the popular energy drink. In his announcement, the Attorney General alleges they misled consumers with ads claiming that doctors recommend 5-hour ENERGY®, by implying the product is safe for teenagers and claiming that the product causes ‘no sugar crash’ when the companies’ own study showed it triggers a caffeine crash.

“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 Ferguson. “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.”

5-hour ENERGY® is a flavored energy shot sold in 1.93 oz. containers. The companies that produce 5-hour ENERGY® are Living Essentials, LLC and Innovation Ventures, LLC.

Ferguson and approximately 30 other state attorneys general have been investigating the accuracy of 5-hour ENERGY® advertisements and marketing claims.

The complaint claims that 5-hour ENERGY® violated the Consumer Protection Act by engaging in the following unfair and deceptive business practices:

• Running a television commercial that featured ‘survey results’ from doctors who ‘recommend’ 5-hour ENERGY® while misrepresenting survey results and failing to disclose key facts;

• Using a ‘no sugar crash’ product tagline that is misleading in light of studies showing a caffeine crash;

• Implying that 5-hour ENERGY® is suitable for teens by stating on the product label, "Do not take if you are pregnant or nursing, or under 12 years of age";

• Representing that the ‘energy blend’ in 5-hour ENERGY® provides ‘energy’ when it is believed the ‘energy’ is derived solely from the caffeine in the product; and

• Representing that the Decaf 5-hour ENERGY® provides ‘energy’ from vitamins and amino acids when it is believed the ‘energy’ is derived solely from the caffeine in the product.

The lawsuit seeks restitution for Washington state consumers; a permanent injunction prohibiting deceptive marketing practices; civil penalties of up to $2,000 per violation of the Consumer Protection Act; and recovery of investigative and attorney fees.

The attorneys general of Oregon and Vermont filed similar lawsuits against 5-hour ENERGY® today. More states will sue in the following weeks, according to Ferguson’s announcement.

The complaint in Washington v. Living Essentials, LLC, was filed on July 17, 2014.

Attorneys: Robert W. Ferguson, Attorney General of the State of Washington, for State of Washington.

Companies: Living Essentials, LLC; Innovation Ventures, LLC

News: StateUnfairTradePractices ConsumerProtection Advertising WashingtonNews