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Producers of energy drinks including Red Bull, Monster Energy and 5-Hour Energy face consumer class actions questioning their claims about their products. A lawsuit filed on January 16 against Red Bull, for example, contends the pitch that the drink “gives you wings” is misleading because a single can contains less caffeine than a cup of coffee. On January 28, a similar lawsuit was brought against the maker of 5-Hour Energy. Meanwhile, members of Congress and the U.S. Food and Drug Administration are looking into the safety of the products after 13 deaths were reportedly linked to 5-Hour Energy and another five deaths were blamed on Monster Energy. David Biderman, a partner in the San Francisco and Los Angeles offices of Perkins Coie who defends food and beverage companies against consumer class actions, spoke to The National Law Journal about the trend. He does not represent any of the energy drink companies named. The remarks below have been edited for clarity and brevity. National Law Journal: The lawsuits against the makers of Red Bull and 5-Hour Energy are the latest in a string of legal actions and inquiries focused on energy drinks. Why are we seeing more of these consumer cases arising against energy drink manufacturers? David Biderman: For a variety of reasons. One is that certain other avenues for class actions have been closed off by the [U.S. Supreme Court] ruling enforcing arbitration provisions, Concepcion v. AT&T. Two, there seems to be more of an interest in food and nutrition generally. It’s fair to say energy drink companies, correctly or fairly or not, are sort of caught in a perfect storm of events that often lead to class action filings. That is, you have The New York Times article that got a lot of publicity that challenged the efficacy of energy drinks; you have some FDA activity into energy drinks; and you have some congressional members who are very publicly making statements about what they perceive to be the risk of these drinks. All those factors typically are going to lead to a class action. NLJ: What are the general allegations in these latest lawsuits? Biderman: They’re trying to suggest that there’s a claim for additional benefits that is not adequately scientifically supported in either the product labeling or advertising. In the Red Bull case, they refer more to the Web site than they do to the advertising or, certainly, to the labeling. That really seems as if that would qualify under most state laws as puffery—it’s a vague statement about helping your energy, but it doesn’t make precise claims. NLJ: How do you see energy companies responding to these suits? Biderman: Innovation Ventures, maker of 5-Hour Energy, did defeat an earlier class action claim because the class representative…couldn’t, at deposition, really substantiate that she had purchased the product as alleged. Really, these companies have strong defenses. One is puffery. Two, there’s oftentimes a lack of commonality or lack of predominance of claims that would prevent class certification. It’s a little bit early to suggest that these cases have merit. NLJ: Yet given the congressional and FDA actions, how do you see the political fervor over energy drink deaths affecting litigation? Biderman: Those issues should be independent of what transpires in the legal proceeding. But we would be naïve to assume that those other atmospherics, the other issues you identified, don’t have some influence on whether a lawsuit is brought—and that some of that information is sought to be brought into the litigation to affect the flavor of the litigation. But it has less to do with the underlying merits of the claims, which are saying, “You say this is an effective energy drink and it’s not more effective than caffeine.” Those other issues shouldn’t be relevant, but they’re probably going to filter into the cases. NLJ: It’s not just energy drinks being targeted with consumer actions. Pom Wonderful has been fending off questions about the health claims associated with its pomegranate juice drink. The Federal Trade Commission on January 10 upheld an administrative law judge’s ruling that Pom’s claims are deceptive. What does this mean for Pom and other food companies that assert health claims? Biderman: There could be some debate as to whether it’s correct or not, but it’s not surprising that the decision was upheld. The FTC basically determined that if there are going to be any claims made about the effectiveness in preventing diseases or reducing illness—and notice they referenced heart disease, prostate cancer and erectile dysfunction—the company had to have the support of two randomized human clinical trials. The FTC has signaled in other contexts that that’s the kind of support they’ll look for in health-related claims or health benefits. It wasn’t a surprise, because it’s consistent with what the FTC has been communicating for the past couple of years about the type of substantiation they would like to see. Many food companies are looking for that substantiation before they make a health claim. Or if they make a health claim, it will be a certain FDA-approved health claim. Contact Amanda Bronstad at abronstad@alm.com.

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