Monster Energy: Food Law Preempts Herrera's Lawsuit

SAN FRANCISCOMonster Beverage Corp. wants a state judge to throw out a complaint filed against it by San Francisco's city attorney Dennis Herrera.

In court papers filed on Jan. 15, Monster argued Herrera's theories are preempted by federal law, barred because they fall under the authority of the U.S. Food and Drug Administration (FDA) and/or fail to state a claim under California law.

Monster moved to strike the complaint a month after a federal judge dismissed a lawsuit that the company filed against Herrera. Herrera said his office was engaged in negotiations with the company to broker an agreement to end marketing practices targeting children when Monster filed suit last year.

Herrera has until Feb. 5 to file a response to Monster's motion to strike the complaint, a spokesperson for the city attorney's office said.

Last year, Herrera sued Monster in California Superior Court in San Francisco County. The lawsuit alleged the largest U.S. manufacturer of energy drinks has violated the California Sherman Food, Drug and Cosmetic Law and Unfair Competition Law.

Monster has been accused of mislabeling its energy drinks as dietary supplements, selling unsafe beverages and engaging in misleading business practices by marketing to children and teens.

Herrera also claimed Monster has failed to warn consumers about the health consequences of drinking its beverages, promotes unsafe consumption, encourages individuals to take its products with alcohol and makes misleading claims about the benefits of its drinks.

The Federal Food, Drug, and Cosmetic Act (FDCA) preempts Herrera's claims that Monster's energy drink is misbranded as a dietary supplement, the company argued in court papers. Monster also said the issue falls within FDA's authority, triggering a legal doctrine known as "primary jurisdiction". (Monster previously labeled its energy drink as a dietary supplement; last year, the company began labeling its products as a conventional food and the process was largely completed by the end of the summer, according to a company spokesperson).

In a private class-action lawsuit that asserted similar claims against Monster, a federal judge dismissed many of the claims based on a finding that they were preempted by the FDCA and fell within FDA's jurisdiction, the company argued in court papers.

Herrera has alleged there is no evidence that caffeine in Monster's drinks satisfy a federal standard known as GRAS (generally recognized as safe) that California law has incorporated by reference. Monster has countered that such allegations must be dismissed because FDA has launched an investigation into the safety of energy drinks that contain caffeine.

"Dismissal is particularly appropriate now that the agency's investigation into the safety of caffeine-containing energy drinks is well underway," Monster's attorney Dan Marmalefsky of Morrison Foerster wrote.

A hearing on the motion and a similar request has been set for March 4. The case is People of the State of California ex rel. Dennis Herrera, San Francisco City Attorney v. Monster Beverage Corporation, Case No. CGC-13-531161.

In a complaint filed last year against Herrera, Monster had argued that San Francisco's attempts to regulate energy drinks was preempted by the FDCA and were unlawful for other reasons. On Dec. 16, U.S. District Judge Virginia Phillips dismissed the complaint, finding that it was barred by a separate federal law known as the Anti-Injunction Act.