On March 29, San Francisco CA Dennis Herrera wrote to Monster threatening litigation unless it reformulated its products to, as he puts it, safe caffeine levels (currently the standard drink contains 160mg/16oz can) provide warning labels, cease promoting over consumption and stop targeting minors.
The brand responded by suing Herrera on April 29, and San Fran’s City Attorney (CA) claims the firm was desperate to block his investigation into Monster’s drinks and state-wide consumer protection litigation against them – the politician accuses the firm of marketing its caffeinated drinks to kids as young as six.
Starbucks coffee, GRAS ingredients and the FDA
But Monster Beverage Corporation claimed in media statements this May that Herrera was motivated by publicity rather than science, since Monster Energy (contains less than half the coffee per ounce than Starbucks coffee, and no more caffeine than any other energy drink.
The US Food and Drug Administration (FDA) had never disputed that the ingredients in Monster are GRAS (Generally Recognized as Safe), the firm added, while it had never marketed its drinks to children.
Judge Virginia Phillips’ dismissal of Monster v. Herrera (filed by the firm on April 29) on December 13 turns on some complex points of law, notably her disagreement with Monster’s claim that all the issues Herrera raises are matters for the FDA and not a State judge.
But the upshot is that the CA’s subsequent state court action filed on May 6, People v. Monster (alleging breaches of Californian state and Federal law) can now proceed.
This suit claims that the largest US energy drink manufacturer is breaking California law by targeting children and teens with products linked to higher blood pressure, brain seizures and cardiac arrests.
“Monster Energy’s Federal suit was a meritless ploy to stop our state consumer protection case, and I’m grateful to the court for issuing an unequivocal dismissal,” Herrera said.
“Despite the known dangers highly caffeinated products pose to young people’s health and safety, Monster deliberately targets children with its marketing,” he added.
‘Monster Player of the Game’ award draws fire
The US Senate Commerce Committee had grave concerns over aggressive marketing of such products to young people, Herrera said, while the National Collegiate Athletic Association (NCAA) stops member colleges from giving them to athletes due to safety concerns.
San Francisco’s CA said that ‘numerous’ adverse events reports had been sent to the US Food and Drug Administration (FDA), linking Monster to, inter alia, five alleged deaths.
“It’s my hope that Monster Energy will reform its marketing practices before regulators or courts force them to,” he added.
Herrera tasked his Consumer Protection Unit with investigating Monster in 2012, and said one objectionable tactic was the brand’s ‘Monster Energy Drink Player of the Game’ series, in which high school athletes are awarded and photographed with twin four packs – eight 16oz cans – of Monster Energy Drinks.
“At 10mg of caffeine per ounce, the photos advertise high school athletes, including minors, displaying more than 12 times the generally recommended daily maximum of caffeine for adolescents,” Herrera’s office said.
Monster predicts ultimate victory
Responding to Herrera on December 18, Monster reiterated its confidence in the safety of its drinks, and said that Judge Phillips agreed with it that challenges to the safety of its energy drinks were subject to the primary jurisdiction of the FDA, a position that the brand claims is corroborated by a previous case (Fisher v. Monster) where the same judge presided.
“Monster is confident that the California state court will find in due course as that litigation proceeds, as Judge Phillips did in Fisher and in denying Herrera’s challenge to the merits of Monster’s lawsuit, that all claims regarding the safety of its products are preempted and subject to the FDA’s primary jurisdiction," the company said.
“Monster is also confident that the state court will find, as Judge Phillips did in Fisher, that the slogans on its cans are not actionable and, even if they were, that a substantial body of scientific literature validates the performance enhancing features of Monster’s energy drinks," Monster added.