We have written several times about the FTC’s effort to rein in what it sees as unsubstantiated cognitive improvement claims (see prior blogs: Brain Training, Lumosity, Word Smart, and Your Baby Can Read). Well, the states appear focused on this segment, too. On October 7, 2016, after two years of litigation and a trial, Judge Beth Andrus of the Superior Court of King’s County Washington issued a 59 page opinion resolving claims the Washington State AG had made against the makers of 5-Hour ENERGY® for alleged deceptive advertising in violation of the Washington Consumer Protection Act (CPA). For those of you who do not watch TV, browse the Internet, visit convenience stores or spend time with college students, 5-Hour ENERGY® is an “energy drink” marketed as a dietary supplement, with ingredients consisting of caffeine, B vitamins and other nutrients. The court found for the AG on some claims and for the defendants on some others. How the court reached its decision is worth spending a little time if you have the energy.
The case arose out of a multi-state investigation that began in 2012. While the other states appear to have closed their investigations, in 2014, Washington State sued and subsequently filed an amended complaint in 2015. At trial, the court considered live or deposition testimony from close to 20 scientific experts, including a former Director of the FTC’s Bureau of Consumer Protection, Howard Beales. The legal framework used by the court mirrored that used by the FTC in determining whether the claims were deceptive. The court considered five claims at trial, assessing the company’s advertising to determine whether the claims were made, and then the substantiation to support the claim if made.