U.S. Rep. Edward Markey (D-Mass.) has written a November 30, 2012, letter to Federal Trade Commission (FTC) Chair Jon Leibowitz asking the agency to investigate advertising claims made by energy-drink manufacturers. Alarmed by recent media reports allegedly linking products such as 5-Hour Energy® to consumer deaths, Markey notes that many energy drinks “are sold as dietary supplements” that do not fall under Food and Drug Administration (FDA) rules for caffeine content or labeling, and do not require FDA approval before going on the market.

“As you know, the FTC has in the past successfully investigated and took action against claims made by alcohol-containing energy drinks found to be engaging in unsafe, deceptive marketing claims,” writes Markey, who has also asked FTC to describe its coordination with FDA and other federal agencies. “I believe an investigation into energy drinks that do not contain alcohol and are often targeted at children may be warranted at this time.” Additional details about FDA reports on 5-Hour Energy® appear in Issue 462 of this Update.

Meanwhile, the Center for Science in the Public Interest (CSPI) has criticized a Web advertisement created by 5-Hour Energy® manufacturer Living Essentials, LLC that allegedly quotes CSPI Executive Director Michael Jacobson as saying, “Overdoing caffeine alone is actually pretty difficult to do. Someone would have to make an effort to consume 40 or so 200-milligram tablets.” According to a December 4, 2012, letter by CSPI’s attorneys, the advertisement in question obtained the quote from a Time magazine interview and used it to suggest that “Dr. Jacobson believes that your product is safe.”

“Dr. Jacobson and CSPI most certainly do not believe that 5-Hour Energy is necessarily safe at the dosages that may be consumed, as your video suggest,” opines CSPI, which claims that Living Essentials misrepresented Jacobson’s views and infringed on his “right of publicity under state statutes and common law.” The consumer group has also accused the manufacturer of using Jacobson’s statements for promotion without written permission, infringing on CSPI’s marks and damaging the group’s reputation. “In addition,” continues the letter, “the use of CSPI’s marks as described constitutes false advertising in violation of the Lanham Act, as the video does not reflect CSPI’s view about 5-Hour Energy.”

Living Essentials has since responded to the claims by removing the video from its Website “while the company ‘research[es] the legal issues further.’” See CSPI Press Release, December 6, 2012.