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Vermont settles with 5-hour Energy in false advertising lawsuit



VtDigger
Saturday, August 17, 2019

The makers of liquid dietary supplement 5-hour Energy settled with the state of Vermont last month after years of litigation over a false advertising claim.

The company paid the state $308,000 to cover legal expenses. It did not admit to wrongdoing, and the case has since been sealed.

But in 2019, 5-hour Energy continues to make claims about its products’ health benefits — claims that may imply nutritional perks the supplement does not provide.

In 2014, Vermont, Washington and Oregon each filed a lawsuit against 5-hour Energy contending that the company advertised unproven benefits. The suits — which all voiced similar criticisms — argued that 5-hour Energy’s only energizing ingredient is caffeine. The company, on the other hand, advertises a variety of invigorating components.

Vermont’s suit separates 5-hour Energy’s alleged deception into four categories: claims about the product’s offerings, claims about whether consumers experience a caffeine “crash” afterward, claims about doctor recommendations and claims about the product’s appropriateness for teenagers. All of the above assertions, the state contended, are false.

Stephanie Gall, the clinical nutrition manager at the University of Vermont Medical Center, agreed that caffeine is the only 5-hour Energy ingredient with immediate effects.

“A lot of the vitamins that are in 5-hour Energy play a role in our body’s metabolism cycle of producing energy,” Gall said. “The vitamins themselves do not necessarily give us energy, nor do the ones that they included (on the company’s website) become stored in your body and easily accessible when you have a lack of those vitamins coming in.”

She added that B vitamins — a central part of the company’s health claims and ingredient lists alike — are “not giving us this big boost of energy,” despite their energy-adjacent benefits.

In the years since the lawsuits began, 5-hour Energy appears to have stepped back from attributing its effects to vitamins alone. It also has begun advertising its inclusion of caffeine, and it no longer boasts an ameliorated caffeine crash.

Despite the lawsuits, however, 5-hour Energy’s website still implies the product boosts consumers’ energy levels beyond caffeine. Citicoline, the website claims, “can help support brain function.” Phenylalanine “enhances alertness.” Glucuronolactone “has been shown to reduce sleepiness.”

When Gall looked at the ingredient list, she said that some of 5-hour Energy’s assertions lack rigorous scientific backing.

“Taurine, I’m familiar with in animal food products. But what does it do for humans? I don’t think we have great research,” Gall said. “There’s a few things in there that I’m not sure have the scientific support behind them say that they’re good for you — or even bad for you, to go on the opposite side. To me, this is a supplement, and the FDA does not regulate supplements really well.”

But despite the mixed evidence supporting 5-hour Energy’s benefits, legal action has proved difficult to enforce. Vermont’s lawsuit was the last of the three to be resolved: Washington and Oregon both ended their suits years ago, to mixed results. In both cases, a judge sided with the state on some claims and the company on others. In neither case was the company heavily disciplined.

Throughout the suits, 5-hour Energy representatives have defended the organization’s practices. In a public response issued in 2014, a company spokesperson called the suits “bullying” and said the company would not “roll over, pay the ransom and move on.”

The enterprise and its parent organizations, Living Essentials LLC and Innovation Ventures LLC, did not respond to a request for comment.

Regardless of the product’s vitamin content, however, Gall emphasized that the most potent — and potentially dangerous — ingredient in 5-hour Energy is caffeine. She urged supplement users to be cognizant of their consumption, and to keep their caffeine intake within suggested guidelines.

“You could reach three- or 400 milligrams of caffeine in a day, and that’s considered pretty safe,” Gall said. “And people I know who’ve taken 5-hour Energy can take tons and tons of those — there’s way more (caffeine) than that.”