Energy Drink Maker Faces Lawsuits and Congressional Scrutiny After Multiple Reports of Deaths

210px-Energy_drinks_collection.jpgLiving Essentials, LLC, the Michigan-based manufacturer of the drink marketed as 5-Hour Energy, currently faces lawsuits around the country blaming the drink’s high caffeine content for multiple injuries and deaths, or alleging that the company makes false statements regarding the drink’s contents or benefits. A nonprofit health organization recently accused the company of misquoting its executive director in an advertisement. The U.S. Food and Drug Administration (FDA) has named the drink in multiple reports based on consumer complaints, including thirteen fatalities, and two U.S. senators have requested to meet with the FDA regarding concerns about regulation of the beverage.

At least ninety-two FDA reports have mentioned 5-Hour Energy since 2004. Thirty-three of those reports involved hospitalizations, and thirteen involved deaths. Common caffeine-containing beverages like Coca-Cola have strict limits on their caffeine content set by the FDA, but “energy drinks” like 5-Hour Energy, Monster, and others are often labeled as “dietary supplements” rather than beverages. While a 12-ounce beverage like Coca-Cola might have an upper limit of 71 milligrams of caffeine, or roughly six milligrams per ounce, a dietary supplement does not face the same regulations. A single serving of 5-Hour Energy, sold in sixty milliliter (approx. two ounce) containers, may contain 207 milligrams of caffeine. The FDA has announced its intention to review its policies on labeling and warnings for drinks with such high caffeine content.

The company has also dealt with complaints from a non-profit science group, the Center for Science in the Public Interest (CSPI). The group accused Living Essentials of running a misleading advertisement online, which implies that the group’s executive director endorses the product’s safety. According to the CSPI, the advertisement includes a quote from the director saying that a fatal overdose is unlikely based solely on caffeine. The company suspended the advertisement in response to the group’s criticism.

Several lawsuits pending around the country are challenging the safety of 5-Hour Energy, either as a result of injury or death, or based on allegedly false or misleading statements regarding the beverage’s ingredients. A Tennessee lawsuit, Hassell v. Innovation Ventures, et al, alleges that consumption of 5-Hour Energy caused the death of the plaintiff’s husband by cardiac arrhythmia in 2009. The plaintiff asserted causes of action for negligence and products liability, but nonsuited the case without prejudice in November 2011.

A putative class action lawsuit pending in California, Podobedov v. Living Essentials, et al, asserts claims for false or misleading advertising and marketing, largely based on the company’s claim of “beneficial ingredients.” The plaintiff alleges that any effect the drink may have is solely the result of its caffeine content. The court recently issued a protective order for confidential or proprietary information, and the case is still pending.

Two U.S. senators have called on the FDA to enact stronger regulations on products like 5-Hour Energy, which they believe may pose serious health risks to the public. The request, made by Senator Richard Durbin (D-IL) and Richard Blumenthal (D-CT), includes other companies besides Living Essentials, such as the makers of the energy drinks Red Bull and Monster. An article on the website Roll Call notes that the last effort to regulate ingredients in drinks classified as “nutritional supplements” was the successful effort to regulate ephedra about ten years ago. Caffeine, however, may prove more difficult to regulate, given its association with so many popular beverages.

At Lebowitz & Mzhen, we help people in the Washington, DC area recover their just compensation when they have suffered injuries due to defective or dangerous products. For a free and confidential consultation, contact us today online or at (800) 654-1949.

Web Resources:

Voluntary and Mandatory Reports on 5-Hour Energy, Monster Energy, and Rockstar Energy Drink, January 1, 2004, through October 23, 2012 (PDF file), CFSAN Adverse Event Reporting System, Center for Food Safety and Applied Nutrition, Food and Drug Administration (source)

Complaint for Damages (PDF file), Case No. 2:10-cv-02557, Hassell v. Innovation Ventures, LLC, et al, U.S. District Court, Western District of Tennessee, Memphis Division, July 30, 2010
Judgment (PDF file), Case No. 2:10-cv-02557, Hassell v. Innovation Ventures, LLC, et al, U.S. District Court, Western District of Tennessee, Memphis Division, November 8, 2011

More Blog Posts:

Court Denies Motion to Dismiss Brought by Manufacturer of Four Loko in Putative Class Action Lawsuit: Yourth v. Phusion Projects, LLC, Maryland Accident Law Blog, October 24, 2012
FDA Wants to Investigate “Inhalable Caffeine” Further, Washington DC Injury Lawyer Blog, March 30, 2012
Energy Drinks Allegedly Cause Maryland Teen’s Death from Caffeine Toxicity, Maryland Accident Law Blog, March 21, 2012
Photo credit: ‘Energy drinks collection’ by Clock at pl.wikipedia [GFDL or CC-BY-SA-3.0], from Wikimedia Commons.

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