5-Hour Energy Loses One Deceptive Advertising Case; Wins Another

More than two years ago, the attorneys general for Washington and Oregon each filed separate (but very similar) deceptive advertising claims against the makers of the popular 5-Hour Energy drinks, alleging that the ads misled consumers into believing that doctors recommend the product, and that the combination of ingredients provides some sort of benefit that is superior to just drinking coffee. In the last few days, judges in both those cases came to very different decisions.

Washington state Attorney General Bob Ferguson accused 5-Hour’s parent companies — Living Essentials LLC and Innovation Ventures LLC — of trying to mislead consumers into believing that the energy drink’s vitamins and nutrients, in concert with caffeine, were the source of the resulting pep experienced by the user.

The Washington case went to trial in August and late on Friday, King County (WA) Superior Court Judge Beth Andrus ruled against [PDF] the energy drink folks on many of the allegations raised in the lawsuit.

Meanwhile, only two days earlier, a Multnomah County (OR) Circuit Court judge ruled against Attorney General Ellen Rosenblum on all deceptive marketing claims brought by the the state [PDF].

How Did We Get Here?

This case goes back four years, when investigators began looking into 5-Hour Energy’s marketing claims that while the sugar-free drink does include caffeine, the “key” ingredients in the 2-ounce drink are its mix of vitamins and amino acids.

See the “Ten Reasons To Trust” list (at right) of key ingredients taken from a print ad for the energy drink. Caffeine comes ninth out of ten items, just above “Other Ingredients.”

A TV ad for the product ran through these supposedly key ingredients, pushing up their connection to food items generally viewed as healthy. There was an avocado to show vitamins B9 and B6, broccoli to show niacin, a banana for tyrosine.

The ad did also disclose that there was about the same amount of caffeine as one cup of coffee.

“It’s like coffee with vitamins and nutrients,” concluded that ad. “Put them together and it’s a great combination.”

Other marketing materials from 5-Hour Energy touted a sort of synergy between the nutrients and the caffeine.

“Caffeine with vitamins and nutrients,” said the narrator in a 2012 ad. It’s the combination that makes it so great.”

The various ingredients “work in concert to provide a feeling of alertness and energy that lasts for hours,” said a print ad for the product.

While the state argued that 5-Hour Energy tried to hide or gloss over the caffeine content of the drink — which it markets as a dietary supplement — Judge Andrus found that the company had actually been quite up-front about the caffeine, even taking out ads touting the health benefits of the ingredient.

Likewise, Judge Andrus found that 5-Hour was not being deceptive in the way it described the potential health benefits of the various non-caffeine ingredients.

The issue she found was with 5-Hour’s implication that the pep effect of the energy drink was somehow superior to coffee.

“Living Essentials advertised that the combination of caffeine, B vitamins and amino acids would provide energy that would last longer than consumers would experience from a cup of premium coffee (and in some of the ads, longer than 3 or 4 cups of coffee),” reads the ruling.

While the judge acknowledged that there is evidence showing that caffeine and the other ingredients do probably interact, “the Court cannot find that this evidence supports the specific benefit Living Essentials is claiming.”

For example, one study presented to the court supports the idea that the taurine in the 5-Hour Energy may actually counteract the caffeine.

“The studies do not clearly establish that 5-Hour ENERGY’s vitamins and nutrients work synergistically with caffeine to make these benefits last longer than they would last with caffeine alone,” concludes Andrus.

The court also found that Living Essentials deceptively marketed a decaffeinated version of 5-Hour energy. At trial, the company had cited studies showing that daily dietary supplementation of taurine in 3000 mg or more could produce prolonged metabolizable energy. Thing is, the decaf supplement contains only 483 mg of taurine. The science presented to the court did not support the company’s claim that this was sufficient to provide five hours of energy.

In addition to the general marketing claims for 5-Hour, the state’s lawsuit targeted the company’s “Ask Your Doctor” campaign, which implied that a large majority of physicians would recommend it to patients.

The judge took issue with the initial survey used for these ads, which didn’t ask doctors if they thought this particular product was safe or healthy.

“Instead, the doctors were informed that 5-Hour ENERGY [is a] low fat, low calorie, low sodium, sugar-free drink. The survey then asked if the physicians would recommend 5-Hour ENERGY for healthy patients who already use energy supplements,” notes the ruling.

At trial, a prosecution expert testified that the survey questions were designed to elicit a limited response.

“Due to the phrasing of the questions that preceded this question, a ‘no’ response to this question suggested that the responding doctor would instead recommend a high fat, high calorie, or high sodium energy supplement,” explains the judge.

5-Hour scored a victory with regard to its “no crash” marketing, which claims that users of the sugar-free supplement won’t experience the sudden loss of energy sometimes associated with consuming large amounts of sugar.

After Monster challenged these “no crash” ads with an ad industry watchdog back in 2009, 5-Hour began footnoting the claim to explain that “no crash” means “no sugar crash.”

The state had argued at trial that the “no crash” claim is still deceptive because there is still the possibility of crashing from a caffeine high.

However, Judge Andrus says that the state provided no evidence to support the notion of a purely caffeine crash.

“There is no empirical evidence for the existence of a caffeine-related crash,” she explains. “Habituation does not develop after a single ingestion of caffeine, and a caffeine-related ‘crash’ is physiologically implausible because of caffeine’s half-life.”

It’s now up to the judge to determine the penalties and any remedies that 5-Hour must face.

What About Oregon?

Things were much brighter for 5-Hour Energy in Oregon. In a 12-page ruling (compared to the 59-pager in Washington), Judge Kelly Skye concluded that there was nothing in the “Ask Your Doctor” ads to imply that physicians actually recommended 5-Hour Energy, and that the language used in the campaign did not present the surveys as being “scientific or unbiased.”

The Oregon judge also concluded that there was nothing to the state’s argument that 5-Hour deceptively marketed itself as superior to coffee.

“Given the subjective nature of comparing one form of caffeine to another, such as preference for taste, volume of liquid or caloric content, I find these claims are not actionable, nor are they necessarily false, nutritionally speaking,” wrote the judge.

UPDATE: Living Essentials LLC has responded to our request for comment with the following statement —
“The amount of resources Bob Ferguson wasted to boost his political profile is astonishing. As is typical of Ferguson, he is grossly misrepresenting the facts of the case, perhaps as a way to distract from his own troubles, including the investigation by the Attorney Grievance Commission for soliciting campaign contributions unlawfully while this case was pending. The absurdity is that the ad that was the primary focus of the case was never shown to have actually run in the state of Washington, and had been discontinued by the company long before Ferguson’s politically-motivated lawsuit was filed. The judge’s ruling directly conflicts with multiple rulings in other states and was incorrect based on the facts. Ferguson should focus less on his political aspirations and more on the wellbeing of the people of Washington.”

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