Be Careful About What You Claim

Have you ever used 5-Hour Energy ® and wondered if it really is better than coffee? If not, no worries, because the State of Washington took Living Essentials (the company that produces 5-Hour Energy®) to court in order to make them prove their product is! And as it turns out, the company did not have any scientific evidence to support their advertisement. Nor did they have evidence for a couple of other claims they made in commercials and other ads. Instead, the court found that the company was deceptive with their ads and awarded a $3 million plus verdict in favor of Washington. Way to call BS on that one Washington! The rest of this post explains the advertisements involved in this case and how Washington courts found 5-Hour Energy® to be in violation of the Washington Consumer Protection Act (RCW 19.86) on three of their advertisement campaigns.

What is the Consumer Protection Act and what does it do?

The CPA prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce” in Washington.[1] The State created this law to protect the public and foster fair and honest competition in the Washington marketplace.[2] In order to show a company violated the act, the State Attorney General must prove three things in court:

1. an unfair or deceptive act or practice;

2. occurring in trade or commerce; AND

3. a public interest impact.[3]

As mentioned above, the 5-Hour Energy® case involved three ads that the court found to be deceptive and therefore in violation of the CPA. They are as follows:

Superior to Coffee claim

This ad claimed that the vitamins and nutrients in 5-Hour Energy® work with the caffeine to provide longer lasting effects than caffeine alone. The court found this claim to be mere hypothesis that lacked sufficient evidence to make it a scientific finding.

Decaf Claim

The second ad claimed the decaf version of 5-Hour Energy® would provide energy, focus, and alertness for hours without the unwanted “caffeine feeling”. However, the court found Living Essentials again lacked the competent and reliable evidence to back this claim.

Ask Your Doctor Claim

The third and final ad involved a commercial where Living Essentials implied that a substantial majority of doctors would recommend 5-Hour Energy® as a safe and effective nutritional supplement. The ad stated first that Living Essentials asked 3,000 doctors to review 5-Hour Energy® and then stated that 73% who reviewed 5-Hour Energy® said they would recommend it. In reality, the trial court found that only 503 doctors reviewed 5-Hour Energy® and that the doctor’s option to say no meant that they “would instead recommend a high fat, high calorie, or high sodium energy supplement.”[4] The court found that the statics were literally true, but the impression they gave was not true.

Lessons to be learned for your business:

· Do not make claims without having evidence to prove it. If you make a claim in advertisement in Washington, do the research to back up the claim FIRST! If you are not sure whether you research is valid or sufficient enough, ask a lawyer.

· Do not present your statistics in a way that suggests better results than you obtained! If you have a study completed and you choose to share the results, be honest! Deceptive ads can cost you millions! Living Essential was ordered to pay over $3 million in civil penalties, costs, and attorneys fees.

If you are interested in reading the entire opinion, follow this link.

[1] RCW 19.86.020

[2] RCW 19.86.920

[3] State v. Kaiser, 161 Wn. App. 705, 719, 254 P.3d 850 (2011)

[4] Top of p.24 of Opinion.


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