Pennsylvania residents have filed a putative statewide class action in federal court against the company that makes 5-Hour ENERGY® drinks, claiming that they are promoted as a “healthy vitamin-filled energy drink” but are “nothing more than a shot of caffeine.” Thompson v. Innovation Ventures, LLC, No. 13-336 (U.S. Dist. Ct., W.D. Pa., filed March 7, 2013).

The plaintiffs allege that label representations—“Hours of energy now – no crash later” and “Sugar free”—send a message to consumers that the product “will provide five hours of sustained energy within minutes without experiencing any negative ‘crash’ side effects later.” To the contrary, they claim, this “no crash later” representation is false “as admitted on the Defendant’s website and hidden in microscopic language on the back of the bottle which reads: ‘No crash means no sugar crash.’” According to the complaint, more than 25 percent of product users “suffer a caffeine crash.”

Claiming purely economic losses and seeking class certification, the plaintiffs allege breach of express warranty (in trespass), breach of implied warranty of merchantability (in trespass) and violations of Pennsylvania Unfair Trade Practices and Consumer Protection Law. They seek damages, injunctive relief, attorney’s fees, and expenses.