On February 7, Living Essentials LLC and Innovative Ventures LLC, the makers of 5-Hour Energy were ordered to pay nearly $4.3 million in penalties and attorneys’ fees and costs after a Washington State court found the makers deceived consumers with misleading claims regarding things like the effectiveness of the flavored energy shots.
Living Essentials and Innovative Ventures must pay about $2.2 million in civil penalties to Washington State and nearly $2.1 million to cover attorneys’ fees and costs, King County Judge Beth M. Andrus ruled Tuesday. Judge Andrus previously found that the energy shot makers violated Washington State’s Consumer Protection Act in October 2016.
As previously discussed here, state attorneys general from Washington, Oregon, and Vermont filed suit against Living Essentials in 2014, alleging deceptive advertising and marketing claims. According to the lawsuits, Living Essentials made claims that the energy shots were superior to coffee and were recommended by doctors, and that the decaffeinated formula provides energy, alertness, and focus that lasts for hours. The lawsuits sought injunctive relief as well as civil penalties and restitution to consumers.
In October 2016, Judge Andrus ruled against Living Essentials and concluded that claims that 5-Hour Energy was superior to coffee were deceptive and that the evidence did not support the conclusion that the combination of specific B vitamins, taurine, choline, glucuronolactone, and tyrosine with caffeine will make its effects last longer. Judge Andrus also held that Living Essentials lacked sufficient scientific proof for claims that the decaf version of 5-Hour Energy generates energy and alertness that lasts for hours. She ruled that although reliable evidence bolstered claims that the shot might provide a short-term benefit, there was insufficient evidence to claim the benefit would last for five hours. Interestingly, a parallel suit filed by the Oregon Attorney General ended with the opposite result, with the Oregon judge concluding that Living Essential’s statements were not deceptive and not necessarily false.
In assessing the appropriate penalty, Judge Andrus ruled that Living Essentials should pay a $100 civil penalty for each airing of the deceptive ads and $4.29 per bottle sold for deceptive packaging.