Friday, September 13, 2013

Monster beverages, monster puffery

Fisher v. Monster Beverage Corporation, No. EDCV 12–02188, 2013 WL 4804385 (C.D. Cal.)| July 9, 2013)

Plaintiffs brought the usual California claims, including warranty claims, over Monster’s energy drinks’ allegedly excessive and unwarned-for caffeine.  Until recently, Monster called the drinks “dietary supplements” instead of beverages, allegedly to avoid disclosing their caffeine content, but changed the classification in early 2013.  Individual plaintiffs alleged that they believed that Monster beverages were safe and therefore bought them, sometimes starting when they were under 18 due to Monster’s marketing/free sampling targeting young people; one alleged that he drank so much—often with alcohol—that he developed serious health issues, including critically high blood pressure and withdrawal headaches when he tried to stop.  (Yeah, I get those.)  Other alleged health risks from excessive consumption include dehydration and high-risk behavior. 

Plaintiffs alleged that Monster targeted young people, including by sponsoring extreme sports and by “obfuscat[ing]” the risks of the product as well as by enticing them with labels such as “It’s the ideal combo ... to deliver the big bad buzz that only Monster can” and “Athletes, musicians, anarchists, students, road warriors, metal heads, nihilists, geeks, hipsters, bikers, and milfs dig it. You will too.” Monster allegedly promoted mixing Monster drinks with alcohol, and energy drink consumption is a risk factor for alcohol dependence.

Monster allegedly contains very high levels of caffeine, including stimulants like guarana, which contains “hidden” additional caffeine. Though Monster doesn’t label each can’s content, it has disclosed elsewhere that a 16-ounce can has 160 mg of caffeine, while the FDA considers 400 mg safe for healthy adults daily, and the American Academy of Pediatrics recommends only 100 mg for adolescents.  The can states: “Consume responsibly--Max 1 can per four hours, with limit 3 cans per day. Not recommended for children, people sensitive to caffeine, pregnant women or women who are nursing.”

Monster argued that the plaintiffs didn’t have standing because they didn’t allege physical injury, only that Monster drinks could be bad for their health.  Plaintiffs argued that they alleged economic injury—they overpaid/wouldn’t have bought the product if they’d known the truth.  The court found two plaintiffs’ allegations insufficient to demonstrate economic injury, because they didn’t allege misrepresentation or deception, only that they “saw nothing on the labeling of the [cans of Monster Drinks] that would lead [them] to believe that drinking [the Monster Drinks] could be bad for [their] health....”  This was a purely hypothetical injury.  They also didn’t allege that they paid a premium because of any misrepresentation (since they didn’t allege a misrepresentation) or that they would’ve bought something else absent a misrepresentation.

Although plaintiffs argued that their claims weren’t grounded in fraud, the court concluded that they were and that they flunked Rule 9(b).  Plaintiffs brought claims against 28 varieties but only alleged purchase of 8 specifically, then generally alleged that they consumed others.  They also didn’t allege which ads or labels specifically misled them.

Monster also largely succeeded in its preemption arguments, despite overrelying on  POM Wonderful LLC v. Coca–Cola Co., 679 F.3d 1170 (9th Cir. 2010), which didn’t consider state law claims that imposed requirements “identical to” FDA requirements.  However, Monster argued that plaintiffs were seeking to impose caffeine labeling requirements not identical to the FDCA/FDA requirements.  Insofar as the consumer protection claims were based on failure to adequately label the ingredients, the claims were dismissed, since Monster disclosed the total quantity of ingredients in its “proprietary blend” as required.  Also, the FDA doesn’t require the caffeine warnings sought by plaintiffs, so claims based on their absence were preempted.

The court also rejected plaintiffs’ breach of warranty claims.  Monster’s statements were nonactionable puffery, not warranties:

• “It’s the ideal combo ... to deliver the big bad buzz that only Monster can.”

• “Athletes, musicians, anarchists, students, road warriors, metal heads, nihilists, geeks, hipsters, bikers, and milfs dig it. You will too.”

• “[B]igger is better ... because you can never get too much of a good thing.”

• “We hacked our carbohydrates and calories, transplanted the wicked buzz and dialed in the flavor. Lo–Carb MONSTER energy still delivers twice the Buzz of a regular Energy drink, but only has a fraction of the calories.”

• “You’re gonna love it cause it’s a new kind [of] buzz.”

• “No regular bottle could handle this evil energy brewski. So we designed our own with the biggest chugger friendly wide mouth we could make.”

• “A shot it’s not ... but then you don’t have to plug your nose to drink it!”

• “Monster Extra Strength packs our biggest punch!”

• “[B]uzz that’s bigger than ever. This is no “Whip-it” but it will whip you good.”

• “Our friends at the Rehab pool party in Vegas know all about recovering from a long night and together we came up with Monster Rehab Green Tea  Energy.”

• “[Q]uenches thirst, hydrates like a sports drink, and brings you back after a hard day’s night.”

• “[O]ur bad Rehab energy blend to fire you up.”

• “It’s a wicked mega hit that delivers twice the buzz of a regular energy drink.”

Nor did plaintiffs successfully allege that Monster breached an implied warranty of fitness for intended use.  They alleged that the drinks “can cause serious and even fatal health problems, ... and excessive consumption may result in increasing heart rate, blood pressure, other cardiovascular complications, sleep deprivation and diarrhea, among others.”  But they limited their allegations to the claim that the drinks didn’t conform to the promises on the label, and such claims were preempted.  These failures got rid of the Magnusson-Moss claim as well.

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