Monster Beverage Suing S.F. City Attorney Over Energy Drink Actions

Seeking court order to halt investigation, declare demands illegal

Published in CSP Daily News

CORONA, Calif. -- Monster Beverage Corp. has filed a federal lawsuit seeking to enjoin and declare illegal demands by San Francisco City Attorney Dennis 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.

The suit comes at a time when the energy drink industry has come under intense scrutiny. The FDA is investigating reports of deaths linked to energy drinks, although the agency has noted that the reports do not prove the drinks caused the deaths, said an Associated Press report. The FDA is also looking at other caffeinated foods and beverages.

Herrera's Consumer Protection Unit launched an investigation into the Corona, Calif.-based beverage manufacturer's business and marketing practices last October, citing scientific consensus that highly caffeinated energy drinks pose potentially serious health risks to young people.

A company spokesperson said that Monster provided the city attorney with "voluminous" submissions detailing the scientific evidence supporting the safety of its energy drinks, and offered to meet with his representatives to discuss their concerns.

The company said, "When it became evident that Herrera was more interested in dictating terms to Monster that exceeded his legal authority than engaging in good-faith, evidence-based discussions, Monster felt it had no choice but to seek relief from the court."

The lawsuit states that Herrera's demands are preempted by federal law and barred by the Commerce Clause and the First and Fourteenth Amendments to the U.S. Constitution.

"These matters of public policy are entrusted by federal statute and law to the comprehensive regulatory authority of the [U.S. Food & Drug Administration], which has never disputed that the ingredients in Plaintiffs' energy drinks are GRAS [Generally Recognized as Safe] or that Plaintiffs' drinks are properly labeled," it says.

The suit, which seeks a declaratory judgment and injunctive relief, states that Herrera "appears to be motivated by publicity rather than science. It appears…that [he] gives little regard to medical science, FDA's expertise or fact. ..[Herrera] has decided he is not going to wait for the results of FDA's scientific study."

Also, the suit argues that 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. "This is tantamount to seizing Plaintiffs' product labels and treating them as mini-billboards for the dissemination of [Mr. Herrera's] "op-ed" statements," the suit states.

The suit says that Herrera's demands unfairly single out Monster 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.

For more than a decade, Monster energy drinks have cautioned: "Not recommended for children, pregnant women or people sensitive to caffeine." In addition, Monster energy drink labels advise consumers to "consume responsibly."

The FDA has made clear that it has not established any causal link between Monster's energy drinks and claims concerning the safety of caffeine in energy drinks.

"Herrera's attempt to seize for himself the power to determine the content and labeling of energy drinks and to usurp the FDA's regulatory authority is flatly contrary to well-settled principles of law," the suit states. In light of the constitutional and statutory limits on. Herrera's authority, Monster says in its suit that it will ask the court to declare that his demands are unlawful and enjoin him from any effort to enforce such demands.

Herrera has responded to what he called Monster's "apparently pre-emptive lawsuit." In a statement, he said, "Monster Energy is claiming an unfettered right to continue marketing its products to children and youth, even in the face of overwhelming evidence that its products pose serious risks to young people's health and safety. I strongly disagree with Monster's legal contention, and I intend to litigate this case aggressively to reform their irresponsible marketing and business practices, which I believe clearly violate California's consumer protection laws."

Herrera said his office is negotiating in good faith to obtain Monster Beverage's voluntary agreement to end marketing practices aimed at children and youth. He cited a "Monster Army" social networking community accessible by children, and a "Monster Energy Drink Player of the Game" series, which photographs high school athletes with two four-packs of Monster products.

Monster Beverage is a marketer and distributor of energy drinks and alternative beverages. The Company 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 non-carbonated 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.

The case is Monster Beverage Corp. v. Dennis Herrera, U.S. District Court, Central District of California, Eastern Division, filed April 29, 2013. The suit and all supporting documentation are available on the San Francisco City Attorney's website, http://www.sfcityattorney.org.

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