Monster Energy Distances Itself From Deaths

     SAN FRANCISCO (CN) – Monster Beverage targets children and adolescents for its dangerous “energy drinks,” which have been “implicated” in five deaths, the San Francisco city attorney claims in court. Monster sued back, telling the city to butt out.
     City Attorney Dennis Herrera sued Monster Beverage Corporation in Federal Court, on behalf of the people of California.
     Monster countersued Herrera in Los Angeles Federal Court. It claims that Herrera is grandstanding: that young people can order drinks with more caffeine in them at any Starbucks, but Herrera hasn’t sued Starbucks.
     Monster presents the contention as a quibble over marketing and speech rights, Herrera as a matter of public safety. This article will report on Herrera’s lawsuit first.
     His complaint states: “This case challenges the unfair, deceptive, and unlawful business practices of defendant Monster Beverage Corporation (‘Monster’), the largest manufacturer of energy drinks in the United States. Energy drinks are flavored beverages that contain large amounts of added caffeine and typically large amounts of sugar, as well as other additives such as taurine, guarana, and ginseng. Although energy drinks are a relative newcomer to the U.S. marketplace, they have surged in popularity in recent years, particularly among youth to whom they are aggressively marketed. Monster sells a variety of flavored energy drinks under the ‘Monster Energy’ brand. Monster Energy Drinks contain much higher levels of caffeine than found in traditional sodas and colas commonly consumed by teenagers. “A 16-ounce can of Monster Energy contains 160 milligrams of caffeine (the equivalent of more than four cans of Coke), and, aZ4-ounce can contains 240 milligrams of caffeine (the equivalent of nearly seven cans of Coke).
     “Recent reports of health complications, emergency department visits, injuries, and even deaths related to energy drink consumption have spawned widespread concern among scientists and physicians regarding the safety of the high caffeine levels in Monster Energy Drinks. Monster Energy Drinks have been implicated in the deaths of five individuals, as well as numerous reported illnesses, hospitalizations and injuries. Indeed, a recent lawsuit alleges that a 14-year-old girl died of cardiac arrhythmia induced by caffeine after consuming two 24-ounce Monster energy drinks within a 24-hour period.
     “Based on a review of the current scientific literature, eighteen scientific experts recently concluded that the large amount of added caffeine in energy drinks is not safe as required by law. Rather, there is a strong correlation between consumption of caffeine at levels found in Monster’s products and adverse health and safety consequences. The health risks associated with consumption of energy drinks are serious. Specifically, the scientists found that ‘consumption of highly caffeinated energy drinks has been associated with elevated blood pressure, altered heart rates, and severe cardiac events in children and young adults,’ a number of cases have been reported ‘of new-onset seizures attributed to energy drink consumption among adolescents and young adults ages 15 to 28,’ and ‘[y]outh with higher caffeine intake commonly report troubling neurological symptoms, including nervousness and anxiety, jitteriness, dizziness, headache, muscle twitching, and tremors.’
     “The health and safety risks posed by Monster Energy Drinks’ high caffeine levels are particularly acute for children and adolescents, who tend to have greater sensitivity to caffeine. The American Academy of Pediatrics’ Committee on Nutrition and the Council on Sports Medicine and Fitness recently concluded that ‘rigorous review and analysis of the literature reveal that caffeine and other stimulant substances contained in energy drinks have no place in the diet of children and adolescents.’ Other scientific experts have concluded that adolescents should consume no more than 100 milligrams of caffeine a day, which is less than the amount of caffeine contained in a single 16-ounce can of Monster Energy. Indeed, Monster’s own labeling concedes in small print on the back of the can that the drinks are not recommended for children.
     “Despite the dangers to youth of consuming energy drinks and Monster’s own warning label which acknowledges these risks, Monster aggressively markets its products to children and teenagers by sponsoring youth sports tournaments and prominently featuring profiles of youth ranging in age from 6 to 17 on its Monster Army website. Monster also targets children and teenagers by promoting a ‘lifestyle’ that features extreme sports, music, gaming, military themes, and the scantily-clad ‘Monster Girls.’ As a direct result of Monster’s targeted advertising efforts, its products are popular with and frequently consumed by youth.
     “Although Monster’s products pose safety risks, Monster has failed to adequately warn consumers of the dangers of consuming Monster Energy Drinks. Instead, Monster promotes consumption of its drinks in an excessive and unsafe manner. Monster tells consumers they can ‘never get enough’ of its drinks and encourages them to ‘pound down’ and ‘chug down,’ the product. Further, the daily limit that Monster’s labeling claims is safe is three 1`6-ounce cans (containing 480 milligrams of caffeine), which is nearly five times the maximum daily caffeine limit recommended for children and adolescents, and exceeds the 400 milligram daily caffeine limit recognized by the Food and Drug Administration as safe for healthy adults. Thus, even if youth adhered to the daily limit recommended in small print on Monster’s labeling, they would be consuming an amount of caffeine that far exceeds what is safe.
     “Monster’s marketing is also misleading in that it includes unsubstantiated claims about the purported special benefits of its ‘killer’ ingredients and ‘energy blend’ that ‘unleash the beast,’ boost energy, and enhance physical performance, particularly athletic performance. Recent scientific studies show that there is little if any evidence that Monster’s ingredients other than caffeine, such as taurine, guarana, ginseng, glucoronolactone and B-vitamins, provide the benefits Monster claims. Indeed, experts have concluded that drinks like Monster’s are little more than ‘caffeine delivery systems’ that offer no special stimulating effects beyond those available through caffeine alone.
     “Finally, until March 2013, Monster improperly labeled Monster Energy Drunks as ‘dietary supplements,’ rather than as a conventional food and beverage, in violation of state law. By labeling itself as a dietary supplement, Monster sought to evade the safety standards that apply to food and beverage additives and take advantage of more relaxed requirements that apply to dietary supplements.
     “Monster’s business practices violate the California Sherman Food, Drug and Cosmetic Law, Health and Safety Code Section 109875 et seq. (‘Sherman Law’) and Unfair Competition Law, Business and Professions Code Section 17200 et seq. (‘Unfair Competition Law’). The People bring this suit to enjoin Monster from continuing its course of illegal conduct that is harmful to consumers and to competitors of Monster that do not engage in these practices. The People also seek civil penalties and restitution of all money acquired as a result of Monster’s unfair business practices.”
     In its countersuit, Monster states: “Plaintiffs’ Monster Energy brand energy drinks have less than half the caffeine per ounce than do the leading brands of coffeehouse-brewed coffee, such as Starbucks. Nevertheless, Defendant has decided – against the weight of scientific evidence and contrary to a recent determination by regulators at the Federal Food and Drug Administration (‘FDA’) – that Plaintiffs’ energy drinks are unhealthful and wants to dictate who may and may not consume them. Defendant has threatened to seek an order enjoining Plaintiffs from selling their energy drinks as currently formulated; severely restricting what Plaintiffs can say on their product labels, in marketing materials, and elsewhere; and prescribing the manner in which Plaintiffs can market and sell their energy drinks and to whom those products may be marketed and sold.
     “Today, any child can walk into a Starbucks and buy an unlimited number of ‘Grande’ (16-oz.) brewed coffee drinks – each one with more than twice the caffeine (330 mg) as one of Plaintiffs’ 16-oz. energy drinks – with no restrictions or limitations and, apparently, with the acquiescence of Defendant.
     “Indeed, all sizes of Starbucks brewed coffee drinks contain more caffeine than does one of Plaintiffs’ 16-oz. energy drinks: a ‘Short’ (8-oz.) contains 180 mg; a ‘Tall’ (12-oz.) contains 260 mg; a ‘Grande’ (16-oz.) contains 330 mg; and a ‘Venti’ (20-oz.) contains 415 mg of caffeine.)
     “Defendant has singled out Plaintiffs, though their competitors follow a similar advertising and marketing strategy, use comparable product labels, and sell energy drinks that contain the same supposedly offending ingredient (caffeine) at levels equal to, and in some cases higher than, Plaintiffs’ energy drinks. A 16-oz. can of Red Bull contains approximately the same level of caffeine as do Plaintiffs’ energy drinks. A number of 16-oz. Rockstar energy drinks contain 240 mg of caffeine. 5-our Energy 1.93-oz. energy shots contain up to approximately 240 mg 4 of caffeine. Moreover, Monster Energy drinks contain far less caffeine than do large single-servings of fountain drinks, such as Mountain Dew and Pepsi Max, which are very popular with adolescents. A 32-oz. single serving of Mountain Dew contains caffeine levels comparable to those in a 16-oz. can of Monster Energy drink, and a 52-oz. extra-large single-serving fountain size of Mountain Dew contains 234 mg of caffeine.
     “Defendant appears to be motivated by publicity rather than science. He announced his investigation just a few weeks after FDA reported that it was conducting its own evidence-based evaluation into the safety of caffeine-containing energy drinks for the same sub-populations – adolescents and consumers who are sensitive to caffeine. He sent his initial demand letter to the press the same day he transmitted it to Plaintiffs. Although he demanded numerous documents and data from Plaintiffs, he posted his letter to his website a few days after sending it – without awaiting Plaintiffs’ response. It appears, therefore, that Defendant gives little regard to medical science, FDA’s expertise, or fact. Defendant has decided he is not going to wait for the results of FDA’s scientific study, and has threatened to bring suit now if Plaintiffs do not succumb to his demands.
     “Defendant’s demands and his investigation are preempted by federal law. As the attorney for a single municipality, Defendant has no authority to impose his views concerning whether the levels of caffeine and other ingredients in Plaintiffs’ nationally distributed energy drinks are Generally Recognized as Safe (‘GRAS’) for their intended use, or whether the labeling on these drinks is appropriate, nor may he prohibit Plaintiffs from selling their products in cans larger than 16 ounces. Yet that is precisely what Defendant seeks to do. These matters of public policy are entrusted by federal statute and law to the comprehensive regulatory authority of the FDA, which has never disputed that the ingredients in Plaintiffs’ energy drinks are GRAS or that Plaintiffs’ drinks are properly labeled. Defendant’s attempt to arrogate to himself the power to determine the content and labeling of Plaintiffs’ energy drinks and to usurp FDA’s regulatory authority is contrary to well-settled principles of federal preemption and primary jurisdiction.
     “Furthermore, Defendant’s investigation, including the manner in which it has proceeded, violates Plaintiffs’ rights under the First and Fourteenth Amendments of the United States Constitution. Defendant’s demands would also impose undue burdens on interstate commerce and have the practical effect of controlling conduct beyond the boundaries of California.”
     Monster seeks declaratory judgment that Herrera’s demands are unconstitutionally vague and are “compelled speech.”
     It is represented by Dan Marmalefsky with Morrison & Foerster.

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