S.F. City Attorney blasts Monster’s ‘frivolous’ attempt to ‘avoid accountability for recklessly targeting children’ in marketing drinks known to pose health risks
SAN FRANCISCO (June 3, 2013) — City Attorney Dennis Herrera today moved to dismiss a lawsuit brought by Monster Beverage Corporation that seeks a federal court order to halt Herrera’s investigation into the company’s marketing of highly-caffeinated energy drinks to children as young as six years of age. Herrera’s Consumer Protection Unit began investigating Monster’s business and marketing practices last October in light of mounting scientific consensus that its energy drinks pose potentially serious health risks, particularly to young people. In the midst of what the San Francisco City Attorney’s Office believed to be good faith settlement negotiations with Monster to address the City Attorney’s concerns, the company abruptly sued the City Attorney in U.S. District Court in Riverside, Calif. on April 29.
In asking Judge Virginia A. Phillips to dismiss Monster’s civil action, Herrera described the case as “frivolous” and “a barely disguised attempt to forum shop and to preemptively litigate issues properly considered in the context of the City Attorney’s pending state-court action.” Herrera sued the Corona, Calif.-based Monster on May 6, 2013 in San Francisco Superior Court for alleged violations of California consumer protection law that include mislabeling its products as dietary supplements, selling adulterated and unsafe products, and using misleading, deceptive, and unfair marketing practices to target children as young as age six.
“Incredibly, Monster Energy is asserting a constitutional right to not only peddle its potentially dangerous products to young children and adolescents, but to be free from investigation for illegal conduct in doing so,” said Herrera. “Monster’s federal lawsuit is a baseless and cynical ploy to create a legal sideshow, force the City Attorney to litigate in an inconvenient forum in Southern California, and avoid accountability for recklessly targeting children in its marketing of drinks known to pose health and safety risks to young people.”
Immediately prior to Monster filing suit, Herrera’s office was seeking to negotiate a voluntary agreement with the company to end an array of marketing practices aimed at children and youth, including their promotion of Monster Energy drinks at schools and at school-sponsored sporting events. Evidence of actionable marketing tactics uncovered in Herrera’s investigation include a “Monster Army” social networking community with children as young as six years of age, and a “Monster Energy Drink Player of the Game” series, which photographs high school athletes holding twin four-packs — eight 16-ounce cans, containing 128 ounces of highly-caffeinated Monster products. At 10 mg of caffeine per ounce, the photos feature high school athletes, including minors, displaying more than 12-times the generally recommended daily maximum of caffeine for adolescents.
Last month, the U.S. Food and Drug Administration announced its own investigation into the safety of added caffeine in food products — noting “particularly its effects on children and adolescents” — in response to a growing trend in which beverage and food manufacturers like Monster are adding caffeine to their products. Herrera had joined 18 scientists and public health experts in March to urge the FDA to take such action to protect children and adolescents, citing FDA data that consumption of Monster Energy had been implicated in at least five reported deaths. Emergency room visits related to energy drink consumption have spiked dramatically in recent years, according to the U.S. Department of Health and Human Services’ Drug Abuse Warning Network statistics cited in the letter, showing a nearly 14-fold increase in medical events for which emergency invention was sought — from 1,494 instances in 2005, to 20,783 in 2011.
The case is: Monster Beverage Corporation v. Dennis Herrera, U.S. District Court, Central District of California, Eastern Division, CV-13-00786, filed April 29, 2013. The lawsuit and all supporting documentation in the case are available on the San Francisco City Attorney’s website at: https://www.sfcityattorney.org.