Oregon, Vermont, and Washington file lawsuits against 5-Hour Energy Maker

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by John Chapman

5-Hour Energy is sold as a small, 2 ounce “shot.” The manufacturers claim the drink will give you 5 hours of energy without crashing. Sales of 5-Hour Energy drinks have reached more than $1 billion per year.

Consumer Reports tested the caffeine levels in 5-Hour Energy drinks and found that a 2-ounce shot of “Original” 5-Hour Energy had 215mg of caffeine while a 2-ounce shot of “Extra Strength” had 242mg of caffeine. In comparison, a large 16-ounce cup of McDonald’s coffee reportedly has 145 milligrams of caffeine.

In 2012, the FDA announced that it had received reports of 13 deaths over the preceding four years that cited the possible involvement of 5-Hour Energy. Since 2009, 5-Hour Energy has been mentioned in some 90 filings with the F.D.A., including more than 30 that involved serious or life-threatening injuries like heart attacks, convulsions and, in one case, a spontaneous abortion, according to a summary of FDA records reviewed by The New York Times.

Most recently, the states of Oregon, Vermont, and Washington have filed lawsuits alleging deceptive marketing against Living Essentials and Innovation Ventures, the companies behind the 5-Hour Energy drink. The lawsuit filed by Oregon alleges that the companies repeatedly violated the state’s consumer protection laws by “making deceptive and misleading claims about the 5-hour Energy products.”

According to the complaint, the product was promoted as a “unique combination of ingredients” that provided consumers with “energy, alertness and focus”, when the only active ingredient was a concentrated dose of caffeine. Vitamins, enzymes, and amino acids in the product do not provide any of the benefits the defendants claim, alleges the lawsuit. The company also misleads consumers that the product won’t cause a “crash”, and that the product has been recommended by doctors, according to the lawsuit. The lawsuit also alleges the product is improperly promoted as being safe for adolescents 12 years of age and older, and is advertised on the Cartoon Network.

The state lawsuits allege that the company’s marketing claims are unfair because the company does not have “competent and reliable scientific evidence” to support the claims. For instance, the company claims that the megadoses of vitamins and sodium in each bottle “create the alert productive feeling you want,” but there is apparently no evidence to back this claim. All three states are seeking a permanent injunction prohibiting 5-Hour Energy’s allegedly deceptive marketing practices, as well as civil penalties and restitution to consumers. Living Essentials and Innovation Ventures also face pending civil claims by consumers over 5-Hour Energy in other lawsuits.