The Monster in the Closet Just Might Kill You: Regulators Continue to Battle Monster Energy and its Aggressive Marketing to Minors

blogpostpic4-24Hot on the heels of a win in California federal court, the San Francisco City Attorney has teamed up with the New York State Attorney General in its investigation of Monster Beverage Corporation (“Monster”) for deceptive marketing and sales practices targeting children and adolescents.

While in the midst of settlement negotiations with the San Francisco City Attorney’s office, without notice, Monster filed a federal lawsuit against the City Attorney to effectively block the City Attorney’s investigation.  A week later, the City Attorney filed its complaint in California state court against Monster for injunctive relief, civil penalties and damages for assorted violations of California State law.  Similarly, the New York Attorney General is on Monster’s heels, issuing subpoenas as part of its own investigation into the company’s deceptive marketing practices.

The Monster Preemptive Strike: Dismissed

Monster’s lawsuit sought protection under the First and Fourteenth Amendments for, among other things, commercial speech, and alleged that the City Attorney’s investigation was preempted by the Federal Food, Drug and Cosmetic Act.  Last month, the California federal court dismissed Monster’s complaint in its entirety.

The Lawsuit Against Monster: Full Speed Ahead

According to the San Francisco City Attorney’s Office, the dismissal of Monster’s lawsuit has paved the way for its action against Monster (which was filed in May 2013) to proceed.  The lawsuit targets Monster as the largest manufacturer of energy drinks in the United States – with profits in the billions – as aggressively marketing its highly caffeinated drinks to children as young as six years of age.

The lawsuit contains a slew of alleged violations of California law, the biggest allegation being the alleged targeting of its deceptive marketing to children and adolescents.  According to the Complaint, a 16-ounce can of Monster Energy contains 160 milligrams of caffeine – the equivalent of more than four cans of Coke.  While the back of each can has a label in small print warning that the drinks are “not recommended for children,” Monster allegedly aggressively markets to children.  Some examples of Monster marketing campaigns that were included in the complaint show screenshots of the “Monster Army” social networking site, which encourages athletes of all ages to post photos and videos of their extreme sports performances to earn perks from Monster.  The Complaint alleges that the website has hundreds of member profiles, many belonging to minors as young as six years old.  The Complaint further alleges that Monster sponsors numerous youth sports tournaments, including a children’s soccer tournament featuring kindergartners through high school students.

In addition, despite the small print on cans that warn consumers to limit their consumption to no more than two or three cans per day depending on the size of the can, Monster’s marketing allegedly sends a different message altogether – promoting excessive consumption of its drinks.

Big deal?  Scientific evidence about the serious health risks of consuming energy drinks, coupled with the dramatic spike in emergency room visits and deaths of minors, indicate that it is.  Other litigation against Monster includes allegations that a 14-year old Maryland girl died from cardiac arrhythmia due to caffeine toxicity after drinking two 24-ounce cans of Monster Energy.

The New York Attorney General Joins Forces with San Francisco

The New York Attorney General’s Office has issued subpoenas to Monster and other energy-drink makers as part of its ongoing caffeinated product investigation.  It is likely that other states will follow suit.

If you are interested in learning more about this topic, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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