The maker of the 5-Hour Energy drink must continue to defend a consumer class action alleging false advertising after a federal court judge declined to dismiss the suit.
Florida resident Michael Feiner claimed he purchased the beverage at a 7-11 based on the promise that he would receive five straight hours of energy with “no crash later.” But Feiner said his 30-minute high resulted in a crash complete with dizziness, nausea, and headache, and he filed a class action suit under Florida’s Deceptive and Unfair Trade Practices Act.
According to his complaint, 5-Hour Energy’s superiority claims (“coffee and soda help a little, but how long do they last before you’re back for more?”) also failed because the drink does not last longer, perform better, or wear off without a crash, as promised. Further, he claimed that the company had knowledge of studies confirming that the dietary supplement does not outperform competing products.
Innovation Ventures, also known as Living Essentials, moved to dismiss the suit. The bottles and displays are not misleading when taken as a whole, the defendant argued, because of additional language on the bottles and displays clarifying that “no crash means no sugar crash.
”U.S. District Court Judge William P. Dimitrouleas disagreed. “Whether the representations on the bottles and displays when taken as a whole are, in fact, misleading is a question to be resolved at later stages of this litigation,” he wrote.
At the earliest stage of the case, Feiner satisfied the pleading requirements by identifying claims that he contended are deceptive and stating that he would not have purchased 5-Hour Energy but for his reliance on the allegedly deceptive representations, and that he was damaged in the amount of the difference between the premium price he paid for the drink and the price he would have paid had he known that the product was not accurately labeled.
Therefore, the court declined to dismiss the suit. To read the order in Feiner v. Innovation Ventures, click here.
Why it matters: The Florida false advertising suit against 5-Hour Energy is only one of several putative class actions making similar claims against Innovation Ventures. Just days after Judge Dimitrouleas denied the defendant’s motion to dismiss, the U.S. Judicial Panel on Multidistrict Litigation consolidated nine false advertising suits against the dietary supplement maker in the central district of California. In addition to the Feiner case, the MDL will include suits from Alabama, California, Illinois, Louisiana, Missouri, and Ohio. “The Central District of California is a convenient and accessible forum with the resources to devote to this litigation, and centralization before [U.S. District Court Judge Philip Gutierrez] permits the panel to assign the litigation to an experienced judge with some familiarity with the issues in this litigation,” the panel said. Six other cases not included in the original consolidation motion may also be added to the MDL, the panel noted.