United States: Energy Drink Smackdown Begins In Cali Central

Monster Energy takes aim at rival Vital’s allegedly outlandish health claims

Miracle Juice

Energy drink manufacturer Monster has accused VPX of marketing its BANG drinks like a “modern-day snake oil.” VPX, which produces a range of health and performance supplements, is accused of claiming that BANG can reverse mental disability and cure Alzheimer’s disease, dementia, Parkinson’s disease and Huntington’s disease. Compared with these allegations, the fact that VPX calls BANG the “healthiest energy drink” in the market seems like a relatively minor misstep.

Typographical errors and emojis appear in the original, we swear.

Contents

The suit, filed in the Central District of California in early September 2018, goes on to allege that BANG’s ingredient list is deceptive as well.

Creatine, if you haven’t heard of it yet, is an organic acid that helps maintain energy levels in muscle and brain tissue. Like many naturally occurring substances, it has been lionized as a health and exercise supplement, although results are inconclusive.

Nonetheless, creatine exists; Monster accuses VPX of inventing a new ingredient – “Super Creatine” – that supposedly reaches the brain 20 times more effectively than regular creatine. By “invented,” Monster doesn’t mean “hammered the compound out in the laboratory” – it means “completely fabricated the idea of it.” According to Monster’s complaint, Super Creatine is “nothing more than water-soluble creatine,” which is readily available on the market.

Further, Monster claims that VPX’s current actions are nothing new – the company has allegedly been the subject of National Advertising Division (NAD) and Food and Drug Administration (FDA) actions that take issue with the company’s use of ingredient studies in support of product performance claims. In its complaint, Monster recaps three previous NAD actions and one FDA action brought against VPX that found VPX made unsubstantiated claims about a number of its health supplement products.

The Takeaway

Like any close rivalry, the current dispute gets pretty nasty: In the complaint, Monster takes swings at VPX founder John Owoc’s allegedly weak scientific credentials (“his qualifications seem to be based exclusively on his previous stint as a high school science teacher”), the product claims’ lack of credible scientific backing, the company logo and even Owoc’s “guilty conscience.”

Monster is leveling a bevy of charges against VPX, including false and misleading descriptions and representations of fact under the Lanham Act, violation of California’s Unfair Competition and False Advertising Laws, and trade libel. Monster requests that the court enjoin VPX from making allegedly false claims about its BANG products and award Monster damages and profits in excess of $75,000 incurred as a result of VPX’s actions.

As with the Goop case, marketers considering making health and wellness claims should keep in mind the heightened standard for substantiation that applies when such claims are made. This case also illustrates that marketers not only face regulatory and consumer claims when they make unsubstantiated and deceptive claims, but also are at risk of claims by their competitors that are injured in the market by their false and deceptive advertising practices.

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