Monster Energy has asked a federal judge in Florida to dismiss a false advertising lawsuit filed by Bang Energy manufacturer Vital Pharmaceuticals (VPX) accusing the California-based energy drink leader of making dangerous products with hyperbolic marketing.
In the motion, filed on Friday, Monster disputed VPX’s allegations and suggested the complaint was only submitted as a retaliation against the company for the $293 million false advertising lawsuit it had filed against VPX in 2018. As well, Monster argued that VPX had, years prior, previously introduced several failed lawsuits with identical or similar allegations.
“For years, VPX and [former CEO Jack Owoc] have pushed the same frivolous theories against Monster that it pursues in this case,” the filing states. “Depending on the particular lawsuit, VPX has variously styled its allegations as causes of action, affirmative defenses, counterclaims, and trial themes. But whatever VPX calls them, the commonality among VPX’s accusations is that they all failed spectacularly.”
VPX initiated the lawsuit against Monster in August 2022, less than a month before a jury ruled VPX had violated the Lanham Act by wrongfully claiming to contain creatine. The court ordered the company to pay $293 million in damages to Monster, leading it to file for Chapter 11 bankruptcy protection in October.
In its complaint, VPX alleged that Monster had itself violated the Lanham Act by calling its products “energy” drinks, as their sugar content causes consumers to crash and therefore they “reduce energy.” It also cited allegedly false statements made by the company and its co-CEO Rodney Sacks regarding the safety and efficacy of Monster’s beverages, suggesting the beverages contain “potentially lethal health risks” from sugar.
In its motion to dismiss, Monster called the claims a “grab bag of retaliatory allegations” that “repackaged the same issues that were litigated in the False Advertising Case” against VPX. The filing cited three prior and unsuccessful lawsuits VPX filed against Monster, including a 2019 trade dress violation case, a 2019 false advertising case that similarly challenged Monster’s claims to providing energy, and a separate trade dress complaint in 2020.
The company also asserted its right to use “hyperbolic terms” in marketing and is allowed to claim its products are superior to competitors.
“These are precisely the sort of statements that courts routinely dismiss on the pleadings, as generalized statements that a given product is ‘ideal’ or superior to its competitors is non-actionable puffery,” the filing stated.
The filing comes as the two companies continue to navigate post-trial processes from Monster’s case against VPX. In February, Monster filed a motion seeking an additional $167 million from VPX to cover attorney fees and additional damages suffered during the trial period.
Last week, VPX was given 60 days by the court to cease all sales of Bang products featuring the phrase “Super Creatine” and to add a temporary statement informing consumers of the ruling to all online points of sale.
In March, VPX announced its founder Jack Owoc was no longer with the company, vacating his roles as CEO, chief science officer and chairman of the board. The company has been scheduled for a bankruptcy court auction.