Two years ago, the attorneys general of Oregon and Washington filed nearly identical lawsuits in their states alleging that 5-hour energy ads misled consumers by suggesting that the shots are superior to coffee and recommended by doctors. In recent days, the verdicts have come in – and they are completely contrary.
In Washington, King County Superior Court Judge Beth Andrus ruled Friday (PDF) that the scientific data does not support the claim that the combination of vitamins and caffeine in 5 Hour Energy worked “in a synergistic way” to make it superior to coffee .
“None of the studies support the claim that combining specific B vitamins, taurine, choline, glucuronolactone and tyrosine with caffeine causes the energy, alertness and focus effects of caffeine to last longer than if the caffeine were consumed alone” Andrew wrote.
In her ruling, filed Monday, Andrus also found a lack of data to suggest that the decaffeinated version of the shots worked at all. Finally, she concluded that an “ask your doctor” ad campaign misled consumers into thinking medical professionals were recommending drinking the shots, when in reality they were tricked into agreeing to a statement in a survey. Andrus will later, at an unscheduled time, determine what penalties the creators of 5-hour Energy, Living Essentials LLC, and Innovation Ventures LLC face.
“The makers of 5-hour Energy have misled consumers in pursuit of profit,” Washington Attorney General Bob Ferguson said in a statement. “They broke the law and they will be held accountable for their deceit.”
But in Oregon it’s a different story. In a ruling (pdf) last Tuesday, Oregon Circuit Court Judge Kelly Skye acquitted the makers of all charges of cheating. She concluded that whether a drink is better than coffee is a subjective opinion and that the “ask your doctor” ad campaign was vague enough about whether doctors actually recommended the injections in general.
“This message could only be inferred implicitly as the clear language of the ad is clearly limited,” Skye wrote.
The 30 second ad in question said:
“We asked more than 3,000 physicians to review 5-Hour Energy. And what they said was great. More than 73 percent who reviewed 5-hour Energy said they would recommend a low-calorie energy supplement to their healthy patients taking energy supplements. Seventy-three percent. 5 hours of energy contains four calories and is used more than nine million times a week. Is 5 hours of Energy something for you? Ask your doctor. We have already asked for 3,000.”
On the actual survey given to doctors, the question was worded in a tricky way, Washington Judge Andrus ruled. It first introduced 5 Hour Energy as a low-calorie, low-fat, and low-sodium energy drink, before asking doctors if they would recommend a similar energy drink. The question is written in such a way as to suggest that a “no” answer meant that the doctor would instead recommend a high-calorie, high-fat, low-sodium energy drink to those who consume such drinks.
In a statement to Consumerist, Living Essentials LLC accused Washington Attorney General Ferguson of even bringing the case to court. “The amount of resources Bob Ferguson has wasted to raise his political profile is astonishing,” the statement said. “As is typical of Ferguson, he grossly misrepresents the facts of the case, perhaps as a way of distracting from his own problems…Ferguson should focus less on his political ambitions and more on the welfare of the citizens of Washington.”