Hitting out at the lawsuit filed by Monster on Monday, Herrera said: “Monster Energy is claiming an unfettered right to continue marketing its products to children and youth, even in the face of overwhelming evidence that its products pose serious risks to young people’s health and safety.”
Only last week, Herrera’s office said it was negotiating with Monster in “good faith” to obtain the brand’s voluntary agreement to end what the former claims are marketing practices aimed at children and youth – including promotion of the drink at schools and at school-sponsored events.
City attorney stands his ground
But Herrera said he planned to “litigate this case aggressively to reform their irresponsible marketing and business practices, which I believe clearly violate California’s consumer protection laws”.
Herrera’s Consumer Protection Unit began investigating Monster’s business and marketing practices last October, and his office claims it did so in light of a “mounting scientific consensus that highly caffeinated energy drinks pose potentially serious health risks to young people”.
In March, Herrera joined 18 scientists and public health experts urging the US Food and Drug Administration (FDA) to take more regulatory action to protect children and adolescents from dangers, citing FDA data associating Monster consumption with at least five reported deaths.
Monster Beverage Corporation claims in its lawsuit – filed in the US District Court, Central District of California – that Monster Energy brand energy drinks have less than half the caffeine per oz than leading brands of coffeehouse-brewed coffee such as Starbucks (330mg per 16oz serve).
“Nevertheless, defendant has decided – against the weight of scientific evidence and contrary to a recent determination by the FDA, that plaintiff’s energy drinks are unhealthful and wants to dictate who may and may not consume them,” Monster said in its filing.
Monster claims Herrera ‘motivated by publicity’
The attorney has also threatened to seek an order enjoining plaintiffs from selling energy drinks as currently formulated, severely restricting what plaintiffs can say on their product labels and elsewhere, and prescribing where and to whom Monster Energy can be marketed and sold.
In so doing, Herrera had unfairly singled Monster out among competitors including Red Bull but also Mountain Dew and Pepsi Max, the brand claims, adding that Herrera was “motivated by publicity rather than science”.
San Francisco’s city attorney had no authority to impose his views on whether levels of caffeine and other ingredients were Generally Recognized as Safe (GRAS) for intended use and whether labeling was appropriate.
He no power to prohibit Monster sales in 16oz+ cans, the brand added, with such public policy issues entrusted to federal law and FDA regulatory oversight, “which has never disputed that the ingredients in plaintiff’s energy drinks are GRAS or that plaintiff’s drinks are properly labeled”.