Monster Beverage Corp. has filed a complaint for declaratory and injunctive relief against San Francisco’s city attorney, who launched an investigation into the company’s alleged marketing of energy drinks to children in October 2012. Monster Beverage Corp. v. Herrera, No. 13-786 (U.S. Dist. Ct., C.D. Cal., E. Div., filed April 29, 2013). According to the complaint, City Attorney Dennis Herrera has threatened to sue the company under the Sherman Law and California’s consumer protection laws if Monster does not agree to reformulate its product to lower the caffeine content, provide adequate warning labels, cease promoting over-consumption in marketing, cease using alcohol and drug references in marketing, and cease marketing to minors.

The energy beverage maker contends that Herrera’s investigation and demands are preempted by federal law and represent an attempt to “usurp FDA’s [the Food and Drug Administration’s] regulatory authority” contrary to the primary-jurisdiction principle. Monster also claims that Herrera’s conduct violates the First and Fourteenth Amendments under the doctrines of “compelled speech” and “void for vagueness,” and as impermissible restrictions on “content-based speech” and “commercial speech.” The company further alleges violation of the Commerce Clause. The company seeks preliminary and permanent injunctions to stop Herrera from enforcing the state’s consumer protection laws “as regards Plaintiffs’ energy drinks,” attorney’s fees and costs.

Among other matters, Monster claims that (i) its products contain less caffeine than other comparable beverages, including coffee, sodas and energy shots; (ii) Herrera “appears to be motivated by publicity rather than science”; (iii) the company is now exceeding FDA requirements by labeling its Monster Energy® drinks with the total amount of caffeine per 8-ounce serving and per can; and (iv) product labels have long cautioned: “Not recommended for children, pregnant women or people sensitive to caffeine” and “Consume Responsibly.”

Meanwhile, Herrara has fired back at “an apparently pre-emptive lawsuit,” stating “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.” He contends that his office has been negotiating in good faith with the company and also claims to have uncovered evidence of “a ‘Monster Army’ social networking community with children as young as 11 and even 6 years of age, and a ‘Monster Energy Drink Player of the Game’ series, which photographs high school athletes with two four-packs—fully 128 ounces—of highly caffeinated Monster products.”