State Attorneys General from Washington, Oregon and Vermont filed suit against Living Essentials, the manufacturer of the popular energy supplement, 5-Hour ENERGY®, for allegedly deceptive marketing.  The lawsuits seek injunctive relief as well as civil penalties and restitution to consumers.  In a statement late last week, Oregon Attorney General Ellen Rosenblum said, “[p]lainly and simply, in Oregon you cannot promote a product as being effective if you don’t have sufficient evidence to back up your advertising claims.”  The lawsuits come in the middle of a multi-state Attorneys General investigation launched in 2012 by 33 states.  Oregon, Vermont, Maryland, Tennessee and Ohio make up the executive committee leading the multi-state investigation.  The Washington, Oregon and Vermont Attorneys General have said that similar suits will follow in other states in the coming weeks.

Although many multi-state investigations result in settlements between the states and the companies, it appears that 5-Hour ENERGY® was not effectively moving through the multi-state investigation leading several states to file independent lawsuits, thus escalating the matter from the administrative subpoena process to formal litigation.   5-Hour ENERGY®’s response to the suits was terse, suggesting that some of the Attorneys General filed suit only because 5-Hour ENERGY® would not pay money to make the suits go away.  We expect to see other states file suit in the coming days and weeks.