Caveat Vendor

5-Hour Energy: Harbinger of Increased State Activism in the Age Of Trump?

February 15, 2017

Sabin Chung

The Washington State Attorney General’s over two-year pursuit of the makers of the 5-Hour Energy drink ended last week with a court judgment of nearly $4.3 million for violations of the state Consumer Protection Act.

The attorney general alleged that the companies - Living Essentials LLC and Innovative Ventures LLC – deceptively claimed that the drink is superior to coffee, that doctors recommend it, and that its decaffeinated formula provides energy, alertness and focus that last for hours.  The court, in a bench trial, found those claims to be unsupported, ordering $2.2 million in civil penalties and nearly $2.1 million to cover the state’s attorneys’ fees and costs.
5-Hour Energy long has battled with both state and federal regulators over its audacious claims, prevailing in actions in Indiana and Oregon, with suits filed by attorneys general in Vermont and Hawaii still pending.  The National Advertising Division of the Council of Better Business Bureaus, a voluntary industry monitoring body, also has evaluated some of the companies’ claims, recommending discontinuation of one claim it found potentially misleading.
Of greater interest, perhaps, than the specific outcome of the Washington suit (and the other pending actions involving 5-Hour Energy) is what it may portend for other supplement manufacturers – and, indeed, all sorts of advertisers.
State attorneys general have never been shy about pursuing allegations of consumer deception. Judgments such as this one, coupled with a potentially less aggressive Federal Trade Commission, may spur even greater activism on the part of the states moving forward.

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