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Washington State Attorney General sues 5-hour ENERGY for misleading advertisements

Washington State Attorney General Bob Ferguson filed a lawsuit today against the makers of 5-hour ENERGY®, the popular energy drink. The AGO alleges they misled consumers with ads claiming that doctors recommend 5-hour ENERGY®, by implying the product is safe for teenagers and claiming that the product causes ‛no sugar crash’ when the companies’ own study showed it triggers a caffeine crash.

“We believe the ‘energy’ provided by 5-hour ENERGY® products is derived solely from caffeine, not from vitamins and amino acids as their ads claim,” said Ferguson. “In addition, we believe the ‘energy blend’ does nothing and the ‘no sugar crash’ statement is misleading. I will not stand by and see Washington consumers subjected to deceptive advertising.”

5-hour ENERGY® is a flavored energy shot sold in 1.93 oz. containers. The companies that produce 5-hour ENERGY® are Living Essentials, LLC and Innovation Ventures, LLC.

Ferguson and approximately 30 other state attorneys general have been investigating the accuracy of 5-hour ENERGY® advertisements and marketing claims.

Overview of the Attorney General’s lawsuit

The AGO lawsuit, filed in King County Superior Court, claims 5-hour ENERGY®violated the Consumer Protection Act by engaging in the following unfair and deceptive business practices:

  • Running a television commercial that featured ‘survey results’ from doctors who ‘recommend’ 5-hour ENERGY® while misrepresenting survey results and failing to disclose key facts;
  • Using a ‘no sugar crash’ product tagline that is misleading in light of studies showing a caffeine crash;
  • Implying that 5-hour ENERGY® is suitable for teens by stating on the product label, "Do not take if you are pregnant or nursing, or under 12 years of age";
  • Representing that the ‘energy blend’ in 5-hour ENERGY® provides ‘energy’ when it is believed the ‘energy’ is derived solely from the caffeine in the product; and
  • Representing that the Decaf 5-hour ENERGY® provides ‘energy’ from vitamins and amino acids when it is believed the ‘energy’ is derived solely from the caffeine in the product.

While the product labels state that they contain caffeine and an ‘energy blend’ containing amino acids, tyrosine, phenylalanine, and other ingredients, 5-hour ENERGY® does not disclose the amount of each ingredient in the ‘energy blend.’

The AGO reviewed the scientific evidence the companies provided to support their marketing claims during the investigation. The AGO found the companies failed to supply adequate evidence to support their claims. The investigation also revealed that many of 5-hour ENERGY®’s ads and representations were unfair or deceptive.

The lawsuit seeks:

  • Restitution for Washington state consumers;
  • A permanent injunction prohibiting deceptive marketing practices;
  • Civil penalties of up to $2,000 per violation of the Consumer Protection Act; and
  • Recovery of investigative and attorney fees.

The attorneys general of Oregon and Vermont filed similar lawsuits against 5-hour ENERGY® today. More states will sue in the following weeks.

Assistant Attorneys General Lisa Erwin and Kim Gunning are leads on this case.

A copy of the Complaint can be found, here.

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