A United States district court recently tossed a certification bid by a putative class of consumers who alleged that popular energy-shot, 5-Hour Energy, deceptively marketed its effectiveness.
The action arises out of what appears to be a unique take on a traditional “slack fill” claim—that is, a case where the core allegation is that a company’s container deceives consumers about the volume of that container’s contents. In this action, plaintiffs relied on an expert who concluded, despite the bottle’s name, that a bottle of 5-Hour Energy in fact only provides 3.7 minutes of caloric energy. Based on the expert’s opinion, the plaintiffs argued that 5-Hour Energy was 98.7% deceptively “under filled.”
The court, however, was not persuaded. Rather, the court concluded that the plaintiffs failed to satisfy the requirements for certifying a class action for a variety of reasons, core among them: the lack of common evidence supporting common consumer behavior about the representation made by the product’s name (i.e., five hours of energy).
TAKEAWAY: Although the court’s decision puts to rest nearly six years of litigation brought by a putative class of consumers from six states, it is a reminder that “slack fill” actions can come in all shapes and sizes. Advertisers must remember that their products’ containers and any representations thereon will be treated as advertisements and, thus, must be truthful and not deceptive.