Monster Mash

Published in CSP Daily News

S.F. city attorney trades lawsuits with energy drink maker over marketing

Dennis Herrera

SAN FRANCISCO -- San Francisco City Attorney Dennis Herrera has sued Monster Beverage Corp. for what he characterizes as violating California law with its marketing of caffeinated energy drinks to children.

The lawsuit filed in San Francisco Superior Court on Tuesday comes just one week after Monster Beverage filed a federal lawsuit against Herrera. The energy drink maker is seeking to enjoin and declare illegal demands by Herrera that the company reformulate its energy drinks, reduce caffeine content, limit the size of its energy drink containers and use advertising, marketing practices and messaging dictated by the city attorney.

Herrera said that he and his office have been working with Monster Beverage in good faith to negotiate voluntary changes to its marketing practices when the Corona, Calif.-based company "abruptly" sued the City Attorney in federal court on April 29.

Herrera characterized Monster Beverage's litigation strategy as "forum shopping" and a bid to win the race to the courthouse.

"Monster Energy is unique among energy drink makers for the extent to which it targets children and youth in its marketing, despite the known risks its products pose to young people's health and safety," alleged Herrera. "Consumption of highly caffeinated energy drinks by children has been widely condemned by pediatricians and scientists, and the NCAA has banned its member institutions from providing these products even to college athletes because of the grave safety risks. When the U.S. Food & Drug Administration last week announced its investigation into the addition of caffeine to products like Monster, it expressed particular concern about aggressive marketing to young people. Yet Monster Energy remains defiant. As the industry's worst-offender, Monster Energy should reform its irresponsible and illegal marketing practices before they're forced to by regulators or courts."

Herrera's complaint alleges that Monster Beverage's business and marketing practices violate California's Unfair Competition Law and Sherman Food, Drug & Cosmetic Law. If San Francisco'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.

"Assertions in the San Francisco City Attorney's lawsuit are demonstrably false," Monster Beverage said in a statement provided to CSP Daily News. "Mr. Herrera appears to be motivated by publicity rather than fact or science. The media got copies of his lawsuit before Monster did. We had to get a copy from a reporter. The FDA has never disputed that the ingredients in our energy drinks are GRAS (Generally Recognized as Safe). Nor have they disputed that our drinks are properly labeled."

The statement continued, "In fact, the issues raised in Mr. Herrera's lawsuit are matters of public policy that are entrusted by federal statute and law to the comprehensive regulatory authority of the FDA.

"Additionally, Mr. Herrera's demands are preempted by federal law and barred by the Commerce Clause and the First and 14th Amendments to the U.S. Constitution. The City Attorney has no authority to impose his personal views concerning the levels of caffeine and other ingredients in energy drinks, or concerning the labeling on these drinks, or the size of the products' cans, or to whom they can be marketed or sold. Having said that, Monster--as it has repeatedly said--does not market to children.

"Mr. Herrera seeks to unfairly single out Monster Beverage Corp. without regard to its competitors' products and seeks to impose caffeine limits on its products, even though they contain about half the caffeine by content of coffeehouse coffee, ounce per ounce, which can be marketed and sold to anyone.:

Monster Beverage concluded, "We intend to vigorously defend against this action."

Herrera also "has vowed to not back down," he said.

Herrera's lawsuit is People of the State of California v. Monster Beverages Corporation, San Francisco Superior Court.

Monster's suit is Monster Beverage Corporation v. Dennis Herrera, U.S. District Court, Central District of California, Eastern Division.

Monster Beverage is a marketer and distributor of energy drinks and alternative beverages. It markets and distributes Monster Energy brand energy drinks, Monster Energy Extra Strength Nitrous Technology brand energy drinks, Java Monster brand noncarbonated coffee and energy drinks, X-Presso Monster brand noncarbonated espresso energy drinks, M3 Monster Energy Super Concentrate energy drinks, Monster Rehab non-carbonated energy drinks with electrolytes, Muscle Monster Energy Shakes, Ubermonster energy drinks, Worx Energy shots, and Peace Tea iced teas, as well as Hansen's natural sodas, apple juice and juice blends, multi-vitamin juices, Junior Juice beverages, Blue Sky beverages, Hubert's Lemonades, Vidration vitamin enhanced waters and PRE Probiotic drinks.