A jury sided with Monster Energy Co. in its false advertising lawsuit against Bang producer Vital Pharmaceuticals (VPX) in California federal court this week, awarding the company nearly $293 million in damages.
The nine-person jury found that VPX violated the Lanham Act by wrongfully marketing its “super creatine” supplement as a functional ingredient in Bang energy drinks. During the trial, Monster argued that super creatine did not increase creatine levels in the body and that the dose included in a single can of Bang is too small to provide any significant functional benefits.
The jury also found that VPX violated state law by stealing trade secrets from Monster and by interfering with the company’s retail contracts. However, VPX founder and CEO Jack Owoc was cleared of liability for the contract issue and was not a defendant for the trade secrets claim, according to Law360.
The verdict marks a climax in the four-year long lawsuit first filed by Monster in 2018. The jury awarded $271.9 million to Monster for the Lanham Act violation – the full amount requested by the company – with additional damages tied to the state law violations. During the trial, Monster’s case relied heavily on a survey claiming that one-in-five sales of Bang would have gone to Monster if super creatine had not been falsely advertised.
Monster relied heavily on past public statements from Owoc about the benefits of super creatine, including claims made on social media that it could treat diseases like Parkinson’s and Alzheimer’s. VPX was unable to submit its own studies as evidence, Law360 noted, including one submission that was ruled inadmissible “because it was brought forward far after a deadline,” forcing VPX’s legal team to “criticize the Monster studies while also pulling out elements from them that could be seen as favorable to VPX.”
Owoc’s two days on the witness stand were also cited as a “highlight” of the trial by Law360. The CEO regularly “sparred with Monster’s counsel,” leading much of his testimony to be stricken from the record. The report suggested Owoc made apparently contradictory statements, such as calling super creatine “the greatest invention in the history of supplements” while also claiming it played no role in Bang’s success.
This is Monster’s second major legal victory over VPX this year; in April, a court ordered VPX to pay Monster and family-owned beverage brand Orange Bang $175 million and a 5% royalty on all future net sales of Bang-branded products in a trademark infringement lawsuit. That ruling was upheld in arbitration this summer.
Last year, VPX lost a trade dress infringement lawsuit it filed against Monster, alleging the company’s Reign line of fitness energy drinks had lifted design cues from Bang.
According to Law360, VPX may also now be liable for additional damages to be determined by U.S. District Judge Jesus Bernal, as the Lanham Act allows the court to order “disgorgement of ill-gotten profits.”
The close of the trial arrives as VPX works to rebuild its national distribution network following its exit from the PepsiCo system earlier this year. According to NielsenIQ, retail dollar sales of Bang were down -19.2%, to $1.1 billion, in the two-week period ending September 10 (-7.3% in the 52-week period).
The ruling is also not the end of Monster and VPX’s legal battles. Last month, in the middle of the trial, VPX filed an unfair competition lawsuit against Monster in Florida federal court accusing the company of “trademark bullying” and ignoring reports of hazardous ingredients.