As Monster Energy Corporation’s “Dueling Lawsuits” Continues, CMG’s Katie Weitzman Quoted On This Precedent-Setting Case

The unusual, and possibly precedent-setting, case of “dueling lawsuits” between Monster Energy Corp and the city of San Francisco has been making headlines over the past few months.  As this case continues to play out in the California courts, and as the rest of the world watches to see the results of this high profile case, Collins, McDonald & Gann associate attorney Katie Weitzman has been called upon to shed insight into this complex legal case in the media.

Most recently, Katie was featured in The Tan Sheet–the OTC industry’s leading source of business and regulatory news and analysis of the nonprescription pharmaceutical and dietary supplement industries —  in a cover story about this important case. Katie, who in addition to her role as an attorney at Collins, McDonald & Gann concentrating in dietary supplement law has also worked as a legal intern at the National Advertising Division (NAD) of the Council of Better Business Bureaus and is an accomplished published journalist, provided commentary on the issue of state preemption surrounding whether federal or state law should apply in this case.

In the most recent developments in the Monster Energy case, San Francisco City Attorney Dennis Herrera – who had launched an investigation into Monster’s sales and advertising back in 2012 – has filed a lawsuit in San Francisco Superior Court against Monster  … which followed Monster’s filing of a lawsuit in federal court to try to stop the investigation from moving forward.  At issue — and what could eventually effect the outcome of these “dueling lawsuits” – is whether federal Food, Drug & Cosmetic Act regulations are preempted by state laws when FDA does not act on a city’s or state’s concerns.

In the article, Weitzman pointed out that “a state would need permission from FDA to impose labeling regulations if those rules differed from the agency’s requirement or no existing regulations are in effect” – further noting that “preemption issues are not always black and white.”  In addition, Weitzman also provided insight into the labeling issue concerning Monster’s recent move to label energy drinks as conventional foods rather than dietary supplements (a label change prompted by Monster recently joining the American Beverage Association and following the group’s recommendation to label energy drinks as conventional foods) — expected to have been  90% complete by the end of May.  Although this label change is considered by Monster to be good for their image (the change means that they will no longer be subjected to unfounded criticism that their drinks are being marketed as dietary supplements to avoid FDA regulation), Weitzman also notes that “You can’t un-ring a bell” – going on to state that “if it’s determined that it was misbranding to market the products as supplements, correcting the violation later on doesn’t erase the previous legal misconduct.”

The Monster lawsuits in California continue to bring to light the issue of state preemption of federal FDA law – and continuing developments and the outcome of these lawsuits will most certainly have a tremendous impact on the industry.  In addition, the labeling of energy drinks, and the issue surrounding labeling these beverages as dietary supplements vs. conventional foods, will also continue to be a topic being addressed by all companies in the energy drink market.

It’s a critical time in the dietary supplement industry for companies being scrutinized each day for their marketing and labeling.  As leaders in the area of dietary supplement law, Weitzman and the dietary supplements division at Collins, McDonald & Gann can provide companies today with strategic legal insight into making sure that they are best adhering to all current FDA regulations … and help ensure that companies today don’t have to worry about “un-ringing a bell.”

Make sure to check our blog regularly for updates on the Monster Energy Corp. lawsuits and how decisions made in this case can impact your company and the industry in general.  In addition, to see how CMG can help today’s companies from a legal perspective, call us anytime at 516-294-0300.