Hansen sued Vital (VPX) for false advertising, unfair competition, and trade libel. But Hansen then proceeded only to argue Lanham Act case law for all three claims. Oh well! How much money was wasted on everybody saying “the unfair competition analysis follows the Lanham Act analysis,” etc.? Argh.
Hansen makes energy beverages, including Monster energy drink and Hit Man energy shot. VPX makes the energy shot Redline Power Rush! 7-Hour Energy Boost and energy drinks including Redline Extreme, Redline Princess, and Redline Ready-to-Drink.
Hansen objected to claims that VPX’s product gives “7 Hours of Pure Energy,” “7 Hours of Sustained Energy,” and “No Crash.” The court denied a preliminary injunction, and the case continued.
VPX represents that one serving of Power Rush provides seven hours of energy. The name of the product includes the phrase “7- Hour Energy Boost,” and ads tout “7 Hours of Sustained Energy” and “7 Hours of Pure Energy.” VPX’s website says that “the intense energy will last beyond your workout to keep you focused and energized throughout your day.”
The court rejected the argument that there was an implicit representation that the 7-hour duration claim was supported by product testing, and thus held that VPX hadn’t made an establishment claim.
On the merits, the parties presented conflicting expert opinions and scientific studies about whether there is enough caffeine in Power Rush (163-175 mg, depending on the flavor) to support the claim. VPX had no tests conducted specifically on Power Rush. VPX’s expert opined that the half-life of caffeine is 1.5 to 12.4 hours, averaging 6 hours, while Hansen’s experts identified a lower range, 3 to 5 hours. Neither party submitted evidence on the minimum amount of caffeine below which there is no discernable effect.
VPX’s expert concluded that, with a 6-hour half-life, at 7 hours there’d be about 67 mg of caffeine in the bloodstream. Even with a 4-hour half-life, there’d be about 50 mg at 7 hours. Even assuming the 3-5 hour range used by Hansen, and assuming equal distribution at each hour, 66% of consumers would have individual half-lives of 4 hours or more. VPX’s expert opined that energy effects have been observed at caffeine doses of 50 mg and less, producing small but significant increases in self-reports of mood/alertness and reaction times. Hansen’s own expert stated that an average person shouldn’t have any coffee after the morning to avoid impairments falling or staying asleep in the evening.
The court found that VPX’s claim was not unsubstantiated. It relied on third-party scientific literature on caffeine when it launched Power Rush.
Hansen introduced contradictory evidence, suggesting that minimal effects persisted five hours after consumption of 250 mg of caffeine and that “exercise endurance” six hours after consuming 350 mg of caffeine was no greater than placebo levels. Hansen retained an expert to conduct a clinical trial on Power Rush; the expert concluded that there were no differences between Power Rush and placebo at four hours. The court found this was enough to avoid summary judgment for VPX, despite VPX’s criticisms of bias and defects.
Likewise, the court found a genuine issue of material fact as to whether VPX’s “No Crash” claim was literally false. VPX argued that it only meant no crash from sugar, while Hansen claimed that caffeine was also implicated. The parties had conflicting expert opinions. VPX’s expert said there’d be no sugar crash because Power Rush doesn’t have sugar, and that caffeine doesn’t cause a crash because it’s metabolized slowly. But Hansen’s expert opined that substantial scientific data showed that people often experience crash-like systems following caffeine withdrawal. (Myself, I’ve never called the migraines and emesis I experience from sudden caffeine abstinence a “crash,” but then I've been too busy whimpering to really put a name to the experience.) Continue on to trial!
Hansen also challenged the claim that Power Rush “will leave you ‘amped’ to the max in minutes, ready to tear apart the weights and wear out the treadmill like a tiger released from its cage!” This was puffery: “exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely,” not verifiable or measurable. Even were it not puffery, to the extent that the claim represents that Power Rush provides energy for physical activity, VPX had shown that caffeine provides ergogenic effects even without calories, and thus VPX had shown truth. The court also dismissed claims based on an ad for Redline Xtreme claiming that the drink is “university research proven” to deliver “a significant 7.5% improvement reaction time,” “a dramatic 13% increase in energy,” and “an amazing 15% increase in focus,” and that it “dramatically enhances focus and energy.” The ad accurately reported the study results, and Hansen didn’t challenge the study.
Whether it was false to claim Redline Princess provides “mood enhancement” and “appetite suppression,” which is “nothing short of euphoric,” however, survived summary judgment. VPX’s expert opined that caffeine and other ingredients in Princess such as 5-hydroxy-L-tryptophan, beta-phenylalanine, St. John’s wort, yohimbine and hordenine (hordeum) have been shown to suppress appetite and enhance mood. Hansen’s study of Princess, however, showed no mood enhancement compared to placebo, and cast doubt on the appetite suppression claims, creating a genuine issue of fact.
Hansen also challenged VPX’s statements regarding its sales rank: Ranked “# 1 Energy Shot in Los Angeles” (genuine issue of material fact based on conflicting/confusing reports showing the parties nearly neck and neck); ranked “sixth in San Francisco, Los Angeles and Phoenix and seventh in Dallas” (summary judgment for VPX; VPX’s evidence was good enough, in the absence of contradiction rather than mere criticism that the evidence didn’t cover the 20-25% of energy beverage sales made in drug stores and grocery stores; there was no reason to infer that those sales would change the results); and claims of high growth rates (summary judgment for VPX; VPX presented sufficient uncontradicted evidence supporting its claims).
VPX seperately argued that Hansen couldn’t meet its burden on trade libel. The trade libel claim was based on the sales ranking statements. On the only remaining sales ranking claim, Hansen provided no evidence that consumers were induced not to deal with Hansen because of the allegedly false statement, that the statement was directed at Hansen’s products, or that it caused Hansen special damages, all requirements of the tort. “Importantly, Hansen’s conflicting market report for the Los Angeles area shows that 5-Hour Energy is ranked first in Los Angeles, not Hansen.” So the trade libel claim was out.
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