“Talk about kicking someone when they’re down. Everyone’s piling on now,” Prochnow, a principal in the law firm Greenberg Traurig, told FoodNavigator-USA.
“Monster has the wrongful death suit, the EGCG lawsuit and a shareholders' rights lawsuit. And now this.”
The latest suit, filed in the Central District of California, was filed on behalf of Alex Fisher, a young man who started consuming Monster drinks when he was 16 years old. The complaint alleges that Fisher consumed an average of two to three cans of Monster per week and believed Monster was not injurious to his health because there were no warnings on the can to that effect.
There is a lengthy section in the complaint detailing Monster’s advertising and how it is aimed at the young male market segment. In addition, there is a section talking about the dangers of excessive caffeine consumption, and compares the level of caffeine in Monster beverages to soft drinks.
“There is general philosophy (in the complaint) that Monster is trying to sell these products as supplements to avoid greater scrutiny,” Prochnow said.
The lengthy exposition in the filing makes for “interesting reading,” Prochnow said, but he’s not sure it adds up to a legitimate complaint.
“To me it almost reads as a little bit of a summary of all of what’s going on with energy drinks and specifically Monster over the last nine months,” he said.
“I’m not sure there are really any damages from a civil standpoint for someone labeling it as a supplement but selling it as a beverage.”
“If you are bring a case just based just on that it’s going to get tossed out on pre-emption,” he said.
“The focus is really more of a false advertising type of case. They are taking up the reins from Senators Durbin and Blumenthal in saying that these products are targeted toward teenagers,” Prochnow said.
The two senators have written FDA three times over the last year calling on the agency to investigate energy beverages such as Monster, alleging that they have inappropriately high levels of caffeine. They further allege that the caffeine levels in the drinks are inadequately disclosed on the labels, and that the products are heavily marketed to a vulnerable population. They have also made speeches on the subject on the floor of the Senate.
FDA has responded to two of the letters, saying in effect that the agency does not concur that the energy beverages present a special risk, and that the caffeine levels in the products are not out of line with other caffeine sources in the US diet, such as coffee. Further, the letters state the agency does not consider daily intakes of caffeine less than 400 mg to present special risks.
Prochnow said if he were defending this case, “I would be trotting out the last two response letters to Sen. Durbin from FDA as exhibit one in my defense. If FDA doesn’t find an issue, why are you coming after us? That would be my exhibit 1A.”
Supplement, or beverage?
Prochnow said the case does point to the risk manufacturers run in blurring the line between supplements and beverages. FDA has a guidance on liquid dietary supplements, which has lingered in draft form for some years now, that has language on what makes something a beverage instead of a supplement. Prochnow said he didn’t think issuing that guidance in final form (which Sen. Durbin has repeatedly called for) would necessarily close the book on the subject.
“If the final guidance is anything like the draft guidance, there is going to be nothing concrete. The draft guidance says just because you label it as a supplement doesn’t mean (FDA is) going to treat it that way. FDA is going to look at a number of factors. And no one factor is going make something be a beverage instead of a supplement,” he said.
“There are some things in the complaint about how Monster had labeled it as a supplement but it is in the same shape can and serving size as beverages. I don’t think that alone will make it a beverage. But when (Monster) starts calling it an energy drink, especially in their securities filings and other things, then there start to be more things that start to fall on that side of the ledger to cause FDA to treat it as a beverage.”
Prochnow said he advises clients to decide at the outset what kind of product they want to sell, and then stick to that decision.
“If you are going to call it a supplement, call it a supplement every time you talk about it. Don’t call yourself an energy drink company.
“You have to be consistent and decide which way you are going to sell. If are inconsistent you are just allowing FDA to make this decision for you. Ninety nine times out of 100 they are going to decide that it is a beverage,” he said.