A federal court in California has narrowed the issues in litigation filed by Monster Beverage Corp. against Dennis Herrera, San Francisco’s city attorney, granting in part and denying in part Herrera’s motion to dismiss. Monster Beverage Corp. v. Herrera, No. 13-786 (U.S. Dist. Ct., C.D. Cal., order entered August 22, 2013). Additional details about the dispute between the litigants appear in issues 461, 482 and 483 of this Update.

The court rejected Herrera’s claims that Monster Beverage lacked standing to bring a declaratory judgment action as to issues raised by his threats to sue the company if it fails to change its energy drink products by reducing the caffeine levels and to alter its labeling and advertising. The court also found that the issues are ripe, stating “The dispute here is not abstract and the lawsuit is not premature. The issue here, whether Monster must comply with Herrera’s demands pursuant to California state laws, is fit for judicial decision. If the Court were to withhold consideration, then Monster would be forced either to comply with Herrera’s demand, or be sued.”

The court also determined that it was not required to dismiss the action on the basis of Younger abstention, because, as Herrera argued, Monster had engaged in “forum shopping and gamesmanship,” a contention with which the court disagreed, or on the ground that Herrera has a right to petition under the Noerr-Pennington doctrine. As to the latter, the court stated, “Monster does not seek to impose liability on Herrera for sending a demand letter. Rather, Monster seeks declaratory judgment on the legal issues raised in the demand letter.”

The court agreed to dismiss Monster’s void-for-vagueness claim and its Commerce Clause claim with prejudice, but found that the company was entitled to bring claims under the First Amendment, preemption claims to the extent that Herrera seeks to impose more than required by the Food and Drug Administration (FDA), and primary jurisdiction, finding, “Monster has sufficiently alleged that the FDA has primary jurisdiction because the FDA has special competence over the matters at issue in this case” and “has taken an interest in investigating the matters at issue here. In fact, Herrera urges the FDA to take action regarding energy drinks and acknowledges that the FDA has launched an investigation into these products.”