Energized plaintiffs sue energy drink manufacturers

Energized plaintiffs sue energy drink manufacturers

Energy drink companies make some pretty revved-up claims for their products.  Red Bull's makers assert that their beverage "gives you wings" and "vitalizes the body and mind."  5 Hour Energy's label says it will provide "hours of energy now" with "no crash later." Monster Energy Drink will, according to its maker, hydrate you like a sports drink. One of the VPX Redline beverages is named "Xtreme Energy Drink."

What these drinks have in common, besides hyperbolic claims, is a huge amount of caffeine. Other ingredients range from substances that, like caffeine, are ok in moderation (sugar)but not in great quantities, to things you don't need at all (ginseng, "energy vitamins"). 

On Friday, Clay Jones, M.D., wrote a thorough post  on SBM about the dangers energy drinks pose to children, highlighting a recent study from the American Heart Association.  Researchers called for better labeling of energy drink’s high caffeine content and subsequent health consequences, which can include seizures and abnormal heart rhythms. 

Energy drinks aren't so great for adults either. Dr. Jones also discussed the health risks to everyone else as have Scott Gavura, BScPhm, RPh and Harriet Hall, M.D. 

How do the beverage manufacturers get away with it? Lack of adequate regulation. According to the FDA, while food labels are required to list the recommended dietary information for nutrients, caffeine is not a nutrient. If the energy drink contains dietary supplements, the industry-friendly DSHEA controls what must be disclosed on the label. 

 

As I've pointed out before, where a crack appears in consumer safety regulation, the plaintiffs' bar steps in to fill the gap. Red Bull, 5 Hour Energy, Monster and VPX Redline have all been named as defendants in class actions alleging violations of various consumer protection laws and, in some cases, fraud.  

Red Bull and the plaintiffs in two class actions recently announced a $13 million settlement of all claims. Class members include anyone in the U.S. who bought a Red Bull product in the last 12 years. According to the plaintiffs, what tripped Red Bull up was not that its products are unsafe, but its claim that they are superior to other sources of caffeine in cheaper energy drinks. While Red Bull gets to put 12 years of potential consumer claims behind it, consumers who make a claim for reimbursement will receive only a $10 check or $15 in Red Bull products.  Red Bull agreed to revise its marketing and promised that all future claims about the functional benefits of consuming its products will be scientifically and medically supported.  We'll see.

Plaintiffs in a class action filed against 5 Hour Energy were not as successful, at least so far.  In that case, plaintiffs claimed (among other things) that 5 Hour Energy drinks do not, in fact, give one a full 5 hours of energy.  The judge tossed out claims based on misleading advertising because none of the plaintiffs could demonstrate they actually relied on the advertising.  However, the judge allowed claims that the name itself was misleading to move forward, noting the obvious:  the name of the product is 5 Hour Energy and presumably one could believe that this means 5 hours of energy. However, the plaintiffs can try again as the judge gave them leave to amend their complaint. 

Plaintiffs in an action against the maker of Monster energy drinks were similarly stymied by lack of proof that they relied on any advertisements.  The judge also ruled that Monster's assertions about the drinks' ability to hydrate were mere "puffery."  ("Puffery" is not legally actionable.) The FDA's lack of labeling rules was also an issue.  No rules means the company didn't violate any rules.

The plaintiff in a proposed class action against Redline specifically attacked its drink's adverse health effects.  These included, according to the complaint, his heart's racing for up to 10 hours, extreme chest pain, extreme nausea and loss of sensation in his hands. All of this required, he says, a two-day hospital stay and sedation.  

In a sane world, there would be adequate regulation of food and dietary supplements. Everyone would know the rules ahead of time and companies would not be playing a "catch me if you can" game with consumers' health and wallets. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Points of Interest 11/24/2014
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