Major supplement marketers of the popular 5-Hour Energy drink, Living Essentials, LLC and its parent Innovation Ventures LLC (“Defendants”), have been named in three (3) separate lawsuits brought by the respective Offices of the Attorney General of Oregon, Vermont and Washington.  Among other things, the civil complaints allege that the Defendants are engaging in deceptive advertising, and seek permanent injunctive relief to prevent the Defendants from continuing such actions in the future.

Unsubstantiated Survey and Test Results May Be Deemed Deceptive Advertising

According to the complaints, which are all substantially similar, the Attorneys General allege that the Defendants intentionally misled consumers into believing that 5-Hour Energy was recommended by doctors, but based these statements on inconclusive survey results.  Additionally, it is alleged that the Defendants’ television and radio advertisements failed to include key facts, such as the product’s caffeine content and the potential side effects associated with consuming 5-Hour Energy.

As we have previously reported, the FTC and state Attorneys General require that supplement companies provide adequate scientific proof to support their specific advertising claims, rather than unsubstantiated survey and test results, which are often intended to mislead consumers.

Past Deceptive Advertising Settlement

This is not the first case of a supplement advertiser being sued for engaging in deceptive advertising.  Just last month, a memory improvement supplement advertiser settled a suit with the FTC for several million dollars and agreed to discontinue any further deceptive advertising campaigns.  We expect the 5-Hour Energy Defendants to enter into a similar settlement with the various state Attorneys General that have brought suit against them.

Takeaway

As evidenced by our regular posts on the topic, online marketers of dietary, cognitive and energy supplements must be careful to comply with applicable state and federal marketing regulations.  Prior to launching a supplement product marketing campaign, the best advice is to: 1) secure two double-blind independent clinical studies that substantiate any and all advertised claims; and 2) make sure that the entire campaign is vetted by seasoned advertising counsel.