The Oregon Department of Justice filed a motion demanding the makers of 5-Hour Energy provide unredacted data to back its advertising claims.
Attorney General Ellen Rosenblum’s health fraud unit wants evidence that 73 percent of doctors recommend 5-Hour Energy, that people who consume it don’t experience a “crash,” and that the product is safe for teenagers.
In April, the unit asked Innovation Ventures, LLC and Living Essentials, LLC, to provide the documentation on which these claims rest. The manufacturers fought the order in June, insisting that it could not cooperate with the state’s investigation into false advertising without revealing trade secrets.
If they provide the Oregon Department of Justice with the unredacted data, they will also have access to the exact formula for the popular drinks. Because 33 other states are a party to Oregon’s lawsuit, that information would not only be made available to those other states, but because they are all government entities, the formula would be subject to Freedom of Information Act requests.
Oregon insists that it cannot judge the veracity of the manufacturers’ claims about 5-Hour Energy without knowing the exact formula. In their countersuit, the manufacturers claim that they have provided a complete list of ingredients, but not the precise amounts, which are unnecessary.
According to a lawyer representing the manufacturers, a list of ingredients is all that is required, because its product’s claim of “no crash” actually means “no sugar crash,” and “[o]ne need only look to the label to verify this claim—sugar is not in the product. There is no need to look at the exact amount of ingredients in the energy blend to confirm this simple truth.”
The state disagrees with the manufacturers’ definition of “no crash,” as well its claims to be safe for consumption. The United States Food and Drug Administration database contains 92 “adverse incident reports” involving the drink, including spontaneous abortion, heart attacks and at least 11 fatalities.
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