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5-hour Energy ordered to pay $4.3 million on deceptive advertising conviction

Washington State sued the company and won in a three-week trial

A Washington State judge has ordered the makers of 5-hour Energy to pay nearly $4.3 million in penalties, attorneys’ fees, and costs for multiple violations of the state Consumer Protection Act.

“The makers of 5-hour Energy broke the law in pursuit of profit, and now they are paying for it,” Washington Attorney General Bob Ferguson said.

Ferguson filed a lawsuit against the companies in 2014, alleging violations of the state Consumer Protection Act. After a three-week trial last September, Judge Beth Andrus ruled in the state’s favor, finding that claims in the companies’ advertising were deceptive.

The deceptive claims — that the popular flavored energy shots are superior to coffee, that doctors recommend 5-hour Energy, and that its decaffeinated formula provides energy, alertness, and focus that lasts for hours — appeared in press releases, on the internet, and in thousands of print and broadcast ads.

"Scant evidence"

In a ruling issued late Tuesday, Judge Andrus ordered defendants Living Essentials LLC and Innovation Ventures LLC to pay nearly $2.2 million in civil penalties for violations of the Consumer Protection Act, as well as $2.1 million in costs.

“Defendants spent more time trying to justify the science behind their ads after-the-fact than they did before marketing the products in Washington,” Judge Andrus wrote in her Tuesday order. “The Court was struck by the fact that Defendants presented no testimony from a single scientist actually involved in developing the contents of this product.”

“There was scant evidence as to what science anyone at Living Essentials had ever seen or relied on before it began to sell this product,” she continued.

The penalties and fees ordered Tuesday include more than $64,000 in sanctions against Living Essentials and Innovation Ventures for “willful” discovery violations in the lead-up to the September trial. Andrus ruled that the defendants improperly “cherry-picked” the documents they produced to the Attorney General’s Office, impeding the ability of the Attorney General’s Office to prepare for trial.

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