Judge Dismisses Monster's Lawsuit Against S.F. City Attorney

Published in CSP Daily News

Energy drink maker says safety challenges subject to federal FDA jurisdiction

RIVERSIDE, Calif. --A U.S. District Court on Dec. 16 dismissed a federal lawsuit by Monster Beverage Corp. against San Francisco City Attorney Dennis Herrera, who said the company is seeking to block his investigation and statewide consumer protection litigation against it for marketing highly caffeinated energy drinks to children.

The dismissal of Monster v. Herrera by U.S. District Court Judge Virginia A. Phillips clears the way for a state court action Herrera filed in May to proceed on allegations that the nation's largest energy drink manufacturer is violating California law by targeting children and teens with products that pediatric studies show "may lead to significant morbidity in adolescents" from elevated blood pressure, brain seizures and severe cardiac events, he said in a press release.

Corona, Calif.-based Monster Beverage issued the following statement in response to Herrera's release:

"In dismissing the action brought by Monster Beverage Corp., Judge Phillips found that Mr. Herrera's lawsuit was not entirely preempted by federal law and that the lawsuit filed by the San Francisco City Attorney in state court would be permitted to proceed; however, on three occasions, Judge Phillips considered whether the sale of Monster Energy drinks comply with [California] consumer protection laws: In Fisher v. Monster, a consumer class action, Judge Phillips twice issued orders dismissing the claims, finding that they were preempted, subject to the primary jurisdiction of the FDA, and otherwise not actionable. In Monster v. Herrera, Judge Phillips again agreed with Monster that challenges to the safety of its energy drinks are preempted and subject to the primary jurisdiction of the FDA.

"We believe those orders remain persuasive authority.

"Monster is confident that the California state court will find in due course as that litigation proceeds, as Judge Phillips did in Fisher and in denying Herrera's challenge to the merits of Monster's lawsuit, that all claims regarding the safety of its products are preempted and subject to the FDA's primary jurisdiction.

"Monster is also confident that the state court will find, as Judge Phillips did in Fisher, that the slogans on its cans are not actionable and, even if they were, that a substantial body of scientific literature validates the performance enhancing features of Monster's energy drinks.

"Millions of Monster Energy Drinks are safely consumed every day. Monster is confident that Monster Energy Drinks are safe."

Herrera also said in his release, "Monster Energy's federal suit was a meritless ploy to stop our state consumer protection case, and I'm grateful to the court for issuing an unequivocal dismissal. Despite the known dangers highly caffeinated products pose to young people's health and safety, Monster deliberately targets children with its marketing. The U.S. Senate Commerce Committee has expressed grave concerns about aggressive marketing of these products to young people, and the NCAA even prohibits member colleges from giving energy drinks to athletes because of the serious safety risks. It's my hope that Monster Energy will reform its marketing practices before regulators or courts force them to."

Herrera's Consumer Protection Unit launched an investigation into the beverage manufacturer's business and marketing practices in 2012.

Herrera's complaint alleges that Monster Beverage's business and marketing practices violate California's Unfair Competition Law and the Sherman Food, Drug & Cosmetic Law. If the San Francisco City Attorney's lawsuit is successful, Monster Energy could be enjoined from continuing illegal conduct deemed harmful to consumers and competitors and forced to pay significant civil penalties and restitution as a result of its unfair business practices.

Herrera's case is People of the State of California v. Monster Beverages Corp., San Francisco Superior Court Case No. 531161, filed May 6, 2013. Monster's dismissed federal action is: Monster Beverage Corporation v. Dennis Herrera, U.S. District Court, Central District of California, Eastern Division, CV-13-00786, filed April 29, 2013.

Click here to view Herrera's full press statement.