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Energy Drinks: Considering The Legal Risks (Part II)

Fri, 03/08/2013 - 1:22pm
Michael Gruver and Glenn Pogust, Kaye Scholer LLP

This is Part II of a two-part series. For Part I, click here.

An energy drink maker should consider several questions, in consultation with legal counsel, to assess its potential vulnerability to litigation. These questions will also be useful going forward, in helping to design marketing campaigns and packaging less likely to serve as the basis for consumer litigation.

Does packaging contain sufficient language regarding potential health hazards?

The FDA has acknowledged: “There is a long history of safe use of... caffeine-containing products in the United States.” For this reason, it appears more likely that product liability suits against energy drink makers will be based on an alleged failure to warn of potential health hazards than on claims of direct toxic effects of caffeine per se.

The prominence and content of warning statements included on packaging for energy drinks varies widely between different brands. One popular drink displays a 14-line boxed warning that lists numerous potential side effects and cautions against use with certain concomitant drugs and medical conditions. Another simply recommends against use by pregnant women and those under age 12.

Unfortunately, this inconsistency in information is fertile ground for potential plaintiffs, who may choose to focus on cases involving drinks with relatively brief warning statements. Product liability plaintiffs could argue that they were not adequately warned, and point to similar products with more comprehensive warnings in their packaging as evidence that the challenged label is inadequate.

The challenge for a drink maker is to craft a warning for its packaging that offers the best defense against a failure to warn claim. In doing so, it will be crucial to consult with legal counsel, as the warning should do its best to afford protection under the potentially conflicting laws of multiple states. Generally, in drafting a warning, drink makers should consider statements regarding:

  • Dangers to individuals with certain pre-existing health conditions
  • Dangers to those taking certain medications
  • Advice on the duration of use
  • Advice on recommended serving size and maximum amount to consume in a 24-hour period
  • Specific populations for whom consumption is not recommended
  • Identified potential negative health effects
  • Warnings against foreseeable misuses of the product

What are consumers told about how to use the product?

Although misuse of a product is often a defense to a product liability claim, many states will permit a plaintiff to recover from a manufacturer for injuries due to a misuse of its product that was foreseeable. For energy drink makers, several misuses are imaginable, including excessive consumption of the drink or use in an attempt at weight loss.

To guard against liability for a foreseeable misuse, drink makers should be careful that no aspect of the marketing or packaging promotes consumption of their product in dangerous quantities.  As noted above, a warning about the health hazards of excess consumption — while seemingly obvious — may be a valuable tool in guarding against foreseeable misuse liability. 

Drink makers should also consider what quantities to make available to consumers in individual bottles or cans. Many popular energy drinks are already sold only in single servings, the familiar “energy shots” found on many store shelves. However, one popular energy drink is sold in an 8-ounce bottle even though the suggested serving size is 2 ounces and a warning on the packaging cautions consumers never to drink more than 4 ounces at one time. Energy drink makers who produce multiple serving bottles and cans should assess whether these larger sizes make misuse more likely, or invite accusations that consumers could be confused and accidentally consume dangerous quantities.

Considering these questions is an important initial step for an energy drink maker who wishes to assess the potential issues it may face in litigation. Depending on the answers, the manufacturer may need to make disclosures to the FDA, modify its advertising campaign, or draft more comprehensive warning language for its packaging. By taking the necessary steps, a drink maker can reduce the potential that the use of its product will result in injury, while also enhancinging its ability to defend against future lawsuits. In an industry that is increasingly a target for plaintiffs’ attorneys, these precautions are a worthwhile effort.

Michael Gruver and Glenn Pogust are lawyers in the Product Liability Group of law firm Kaye Scholer LLP. They can be reached at michael.gruver@kayescholer.com and glenn.pogust@kayescholer.com.

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