The encyclopedia · Advertising & PR · Marketing decision · 2019
5-Hour Energy's 'superior to coffee' claim cost it $4.3M in Washington
Mar 2019: Washington's appeals court kept a $4.3M judgment — 5-Hour Energy's 'superior to coffee' and '73% of doctors' claims lacked substantiation.
Living Essentials · Innovative Ventures · 2019-03
What happened
5-Hour Energy, the caffeinated energy shot made by Living Essentials and Innovative Ventures, was marketed with claims that its makers could not prove: that it was 'Superior to Coffee', that the decaf version was 'effective for hours', and that '73% of doctors would recommend' it.
The Washington State Attorney General sued the companies under the state's Consumer Protection Act. After trial, the court imposed a $2,183,747 civil penalty, $1,886,866.71 in attorney fees and $209,125.92 in costs — roughly $4.3 million in total.
On March 18, 2019 the Washington Court of Appeals upheld the judgment in full. Critically, the 73% figure turned out to be a misreading of a narrow survey: 73% of just 503 doctors who had tried the product, not doctors generally. The court noted the companies had relied on an advertising director with no scientific or medical training doing internet research, which it said was not adequate substantiation for health-related claims.
Why it happened
- The maker claimed 'superior to coffee' and '73% of doctors recommend' without evidence.
- The 73% figure misread a narrow survey of 503 doctors who had tried the product.
- Substantiation was left to an advertising director's internet research, not to science.
The lesson
A health claim needs scientific substantiation, not a marketing director's browsing: '73% of doctors recommend' was misread from a 503-doctors survey, and in court the carelessness cost $4.3 million.
Aftermath
The Washington Court of Appeals affirmed the full judgment on March 18, 2019. The case became a cited example of how state AGs police unsupported health and performance claims in over-the-counter supplements.
Sources
- National Law Review — Washington Court of Appeals Upholds Multi-Million Dollar Fine for 5-Hour Energy Advertising
- AP — Court upholds $4.3M fine for 5-Hour Energy
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