Monster Energy accuses SF City Attorney of publicity-seeking: ‘The media got copies of his lawsuit before we did’

By Elaine WATSON

- Last updated on GMT

Related tags Energy drinks Coffee Caffeine

Just days after Monster Beverage Co pre-emptively sued him, San Francisco city attorney Dennis Herrera has slapped the energy drinks giant with a lawsuit of his own accusing it of violating state law by marketing its products to kids.

In a complaint filed yesterday alleging that Monster's marketing activities violate California’s Unfair Competition Law and Sherman Food, Drug and Cosmetic Law, Herrera argued that Monster was “unique among energy drink makers for the extent to which it targets children and youth in its marketing, despite the known risks its products pose to young people’s health and safety”.

He added: “When FDA last week announced its investigation into the addition of caffeine to products like Monster, it expressed particular concern about aggressive marketing to young people...​ [Yet] Monster aggressively markets its products to children and teenagers by sponsoring youth sports tournaments... and promoting a lifestyle that features extreme sports, music, gaming, military themes, and the scantily-clad 'Monster Girls'.

“As the industry’s worstoffender, Monster Energy should reform its irresponsible and illegal marketing practices.”

Monster - as it has repeatedly said - does not market to children

But Monster said Herrera appeared to be “motivated by publicity rather than fact or science​”, by singling it out, given that Monster Energy contains less than half the caffeine per ounce than Starbucks coffee, and no more caffeine than any other energy drink.

Today, any child can walk into a Starbucks and buy an unlimited number of Grande brewed coffee drinks, each one with more than twice the caffeine (330 mg) as one of Plaintiffs' 16-oz. energy drinks-with no restrictions or limitations and, apparently, with the acquiescence of Defendant.”

A spokesman added: “The media got copies of his lawsuit before Monster did."

Moreover, the FDA "has never disputed that the ingredients in our energy drinks are GRAS [Generally Recognized as Safe].  Nor have they disputed that our drinks are properly labeled", ​he said.

As for its marketing activities, he insisted: “Monster - as it has repeatedly said - does not market to children”.

Herrera appears to be motivated by publicity rather than fact or science

On a more practical level, the issues Herrera raises are also matters for the FDA, not a CA judge, and  preempted by federal law, he argued.  

“The city attorney has no authority to impose his personal views concerning the levels of caffeine and other ingredients in energy drinks, or concerning the labeling on these drinks, or the size of the products’ cans, or to whom they can be marketed or sold.  

 “We intend to vigorously defend against this action.”

Any child can walk into a Starbucks and buy an unlimited amount of coffee,apparently, with the acquiescence of Defendant…

In its April 29 lawsuit, Monster said Herrera had threatened to seek an order preventing it from selling its energy drinks as currently formulated and severely restricting how they are marketed.

"[Herrera] announced his investigation​ [into Monster] just a few weeks after FDA reported that it was conducting its own evidence-based evaluation into the safety of caffeine-containing energy drinks for the same sub-populations-adolescents and consumers who are sensitive to caffeine.

"[But Herrera] has decided he is not going to wait for the results of FDA's scientific study, and has threatened to bring suit now if Plaintiffs do not succumb to his demands.”

Attorney: The FDA’s new aggressive posture toward caffeinated products does not appear justified

The insults were traded after the FDA said it planned to take a “fresh look at the potential impact that the totality of new and easy sources of caffeine may have on the health of children and adolescents”​.

However, Lou Caputo, associate attorney at law firm Emord & Associates, said the FDA’s probe into energy drinks might be more politically than scientifically motivated, adding: “The constant harping from Senator Richard Durbin for action on this front is finally bearing political fruit.”

In December 2012, the FDA published some research​ on caffeine consumption by consulting food scientist Dr Laszlo P. Somogyi, which showed that “without lowering coffee consumption, there would be no meaningful reduction in caffeine intake”, ​said Caputo, writing in the Emord & Associates blog​.

“The FDA Commissioner could simply believe that to reduce the pressure from the Hill she must demonstrate that she is ‘doing something’ to address the general topic of caffeine."

The constant harping from Senator Richard Durbin for action on this front is finally bearing political fruit

He added: “Michael Taylor acknowledges that regulations such as setting age restrictions for caffeine consumption would be impractical; however, capping levels of caffeine in certain products may be something that is considered. 

“How successful the FDA becomes in pursuing that option … may rest on how effectively the agency can continue to sell the argument that the increased availability of new caffeinated food products alone - even in relatively miniscule amounts - somehow equates with significantly increased overall caffeine consumption and a tangible danger to the public. 

“The evidence and science seem not to support that hypothesis.”

Herrera’s lawsuit is: People of the State of California v. Monster Beverage Corporation​, San Francisco Superior Court No. CGC‐13‐531161, filed May 6, 2013.

Monster’s pre‐emptive federal action is: Monster Beverage Corporation v. Dennis Herrera​, U.S. District Court, Central District of California, Eastern Division, CV‐13‐00786, filed April 29, 2013.  

(Click here t​o read a Q&A on caffeine with FDA Deputy Commissioner for Foods and Veterinary Medicine, Michael Taylor.) 

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