Judge rules 5-Hour ENERGY® violated Consumer Protection Act

Tuesday, October 11, 2016

Judge rules claims
are false
Company used thousands of deceptive ads to mislead consumers

The makers of 5-hour ENERGY® violated the state’s Consumer Protection Act by making claims in thousands of ads that were not backed by scientific evidence, according to a ruling filed in King County Superior Court today.

After a three week trial that ended in early September, King County Superior Court Judge Beth Andrus agreed with Attorney General Bob Ferguson that advertising campaigns and press releases by the companies that produce 5-hour ENERGY® — Living Essentials LLC and Innovation Ventures LLC — were misleading.

Judge Andrus issued her 59-page ruling after the court closed on Friday.

Ferguson filed the lawsuit in July of 2014 against the makers of 5-hour ENERGY®, a popular flavored energy shot sold in 1.93 oz. containers. The Attorney General’s Office alleged they deceived consumers with ads claiming that doctors recommend 5-hour ENERGY®; that the product is superior to coffee because its “energy blend” interacts in a “synergistic” way with caffeine to make the energy and alertness associated with caffeine last longer; and that Decaf 5-hour ENERGY® provides consumers with energy, alertness and focus that lasts for hours.

“The makers of 5-hour ENERGY® misled consumers in pursuit of profit,” Ferguson said. “They broke the law, and they will be held accountable for their deception.”

One ad campaign implied that doctors recommend the product based on survey data. The judge agreed that 5-hour ENERGY®’s “Ask Your Doctor” campaign inappropriately combined two separate surveys — one done online, and one by paper with very different survey methodology. The results of those surveys did not support the ads’ impression that 73 percent of doctors in both surveys recommended 5-hour ENERGY®, the judge ruled.

Further, the judge agreed with an expert who testified for the Attorney General’s Office that the surveys were based on biased questions designed to solicit positive responses for the energy drink.

Ferguson also challenged claims that 5-hour ENERGY® was superior to coffee because of the “synergistic” interaction of caffeine and the energy drink’s other ingredients. Judge Andrus agreed that the claims were not backed by scientific evidence.

Judge Andrus wrote: “None of the studies Living Essentials submitted to the Court support the claim that combining specific B vitamins, taurine, choline, glucuronolactone and tyrosine with caffeine will cause the energy, alertness and focus effects of caffeine to last longer than if the caffeine were consumed alone.”

Judge Andrus also agreed Defendants’ claims that decaffeinated 5-hour ENERGY® offered similar effects to the product’s caffeinated version lacked “competent and reliable scientific evidence.”

Judge Andrus sided with the makers of the product that there is scientific evidence to support that the non-caffeine ingredients in 5-hour ENERGY® themselves may support energy and alertness. She also found that the companies didn’t violate the Consumer Protection Act with the claim that the product doesn’t produce a “crash.”

Judge Andrus will determine the penalties and other remedies in the case at a future date.

Lisa Erwin and Trisha McArdle, both senior counsel with the Attorney General’s Office, and Assistant Attorneys General Daniel Davies and Kimberlee Gunning handled the case.


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