Posted 13 August 2015
A complaint was laid with the ASA arguing that this product makes a number of misleading claims, inter alia: that the product supplies “hours of energy”, “fixes tired fast” and that the name itself, 5-Hour Energy, is misleading for it does not supply 5 hours of energy.
The complainant pointed out that a peer-reviewed study did not confirm the claims, and that the product carried risks (not pointed out in the advertising, and that 3 United States states – Oregon, Vermont, Washington – have filed lawsuits accusing 5-Hour Energy’s makers of deceptive marketing. (See ASA complaint beneath ASA ruling below)
The respondent claimed, among other, that two more recent studies found the claims to be justified.
The ASA ruled in favour of the complainant.
The respondent argued that two more recent studies confirmed the claims:
The first study (Wesnes et al) was published in 2013 in a peer reviewed journal. It concluded among other, “The volunteers were requested to limit their sleep to between 3 and 6h the night before each testing day. Compared to the placebo, the energy shot significantly improved 6 validated composite cognitive function measures from the CDR System as well as self-rated alertness; the benefits on 4 of the cognitive measures still remaining at 6h.” The overall effect sizes of the performance improvements were in the small to medium range.
The second study (Paulus et al) was published in 2015 in a non-peer reviewed journal. Parameters tested were Mood, Memory, Reaction Time, Blood Glucose, Resting Heart Rate, Stroop Test and Brain Waves – but not energy, and concluded among other, “All caffeine groups had elevations in mood and faster reaction times at 2.5 hours and most effects sustained for five hours. The 5-Hour Energy® group rated alertness higher than other caffeine treatments . . .” .
The complainant referred to a study published in 2014 (Marczinski et al) which concluded: “Consumption of one energy shot may only result in modest benefits to subjective state. Individuals with preexisting hypertension or other medical conditions should be cautious about using these new consumer products”.
When conflicting results are obtained, caution always needs to be exercised. There is no conclusive proof that the product will grant 5 hours of energy, although it may have some effect on other parameters.
The fact that 3 USA states have filed lawsuits accusing 5-Hour Energy’s makers of deceptive marketing, would suggest further caution. In January 2015, Hawaii also sued over 5-Hour Energy drink claims. According to Oregon Attorney General Ellen Rosenblum, the corporation violates the Trade Practices act. She states, “Plainly and simply, in Oregon you cannot promote a product as being effective if you don’t have sufficient evidence to back up your advertising claims.” In January 2015, a California federal judge trimmed an amended class suit accusing the makers of 5-Hour Energy drinks of false advertising but allowed certain other warranty claims to proceed.
Other relevant background information:
- Energy Shot’s ‘No Crash’ Claim Is Disputed by Watchdog (2013). Study had shown that 24 percent of those who used 5-Hour Energy suffered a “moderately severe” crash hours after consuming it.
- U.S. Food and Drug Administration received reports of 13 deaths over the past four years in which the energy shot may have played a part. (2013)
[note note_color=”#ecfaa3″]RULING OF THE ASA DIRECTORATE
In the matter between:
DR HARRIS STEINMAN – complainant
HOMEMARK (PTY) LTD – respondent [/note]
4 August 2015
5-HOUR ENERGY DRINK / H STEINMAN / 2015-1041F
Dr Steinman lodged a consumer complaint against the respondent’s claims for its “5-Hour Energy” drink as advertised via various online advertisements as well as on the product packaging. He specifically took issue with the following claims:
- “5-Hour Energy®”
- “Hours of energy*”
- “Fixes tired fast™”.
The complainant submitted that a peer-reviewed, published study, done by the Journal of Caffeine Research on this product, concluded that “consumption of one energy shot may only result in modest benefits to subjective state”.
He added that the study implicitly states that “While the consumer may perceive improvements in subjective state, the benefits may not extend to objective performance”. This is at odds with the pertinent claims made about an improvement in energy.
Of particular concern was the fact that the study noted “… the energy shot elevated both systolic and diastolic blood pressure for a sustained period of many hours”. This warning is not present in the advertising, meaning consumers are unable to effectively and accurately weight up the risk of purchasing this product. The caffeine content also makes this product unsuitable for children, yet this fact is not clearly communicated.
The complainant noted that the caffeine content in this product is roughly the same as one strong cup of coffee, and argued that one cannot reasonably claim to experience five hours of energy from one cup of coffee. In fact, three states in the USA have filed lawsuits against the manufacturer of this product for deceptive marketing.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
The complainant identified Clause 4.1 of Section II (Substantiation) as relevant to this dispute.
The respondent submitted that the product is sold under license in South Africa for Living Essentials LLC, a Michigan-based company in the United States of America.
As such, the respondent does not have the authority to change the name of the product. In any case, the name is not misleading. Irrespective of whether or not the effects are “modest” or not, there is still a benefit to consuming it.
In support of its claims, it submitted two other studies, and argued that these studies refute the complainant’s allegations. The first study, published in the “Appetite” journal during 2013 is titled “An evaluation of the cognitive and mood effects of an energy shot over a 6h period in volunteers. A randomized, double-blind, placebo controlled, crossover study”.
The second study is titled “Impact of Various Caffeine Vehicles on Mood and Cognitive, Neuropological [sic] and Physiological Functions Over Five Hours”. It claims to have been published “xx Some month 2015” on pages “XX-XX” of the Ohio Journal of Science.
The respondent submitted that the complainant is relying on an outdated and irrelevant study. In addition, it argued that the name “5-Hour Energy” is not a claim, but a trade mark registered by the Department of Trade and Industry. Any decisions against this name as a consequence of foreign, state-level, non-determinative allegations should be given little or no weight in this matter.
A document from the European Food Safety Authority was submitted to illustrate the risks associated with caffeine consumption, and the respondent added that:
“I am aware that the Code requires an expert to substantiate the said claims or evaluate the documentation. This information is in the public domain and as mentioned before, the one study is peer-reviewed. In our view, it is already objectively substantiated, but we are willing to subject our documentation to such an expert review, if the ASA can suggest to us such a person and grant us the necessary extension to do so …”
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Clause 4.1 of Section II stipulates, inter alia, that advertisers should hold independent documentary evidence for any and all claims that are capable of objective verification.
The first issue to resolve is whether or not the ASA is empowered to find against a name of a product.
The complainant submitted, inter alia, that the name of the product implies prolonged energy, which has not been substantiated.
In Elizabeth Anne’s Natural Baby/ Johnson & Johnson/ 1738 (10 March 2005), where issues relating to the name of a product were considered, the Directorate ruled that a hypothetical reasonable person would not understand the product to be completely natural based on the name of the product alone. In the context, the mere use of the words “Naturals” in the range name was not regarded as misleading.
In Bioslim Snack Bar/ H A Steinman/ 857 (2 June 2005) the Directorate ruled that “The word Bioslim, incorporating as it does the word ‘slim’, as well as the silhouetted figure that forms the ‘I’ in ‘Bioslim’, has the connotation of slimming”.
From the above, it becomes clear that determining whether or not a product name amounts to a claim depends largely on the content in which it is used.
This approach has been consistently used in various matters (refer Bioslim Fat Attack / Dr H A Steinman / 4740 (20 June 2006). Reduce Fat Fast / Dr Steinman / 4613 f 6 April 2006) and USN Lean-R / Dr HA Steinman / 4653 (20 November 2006) for example),
The name “5-hour ENERGY” along with an image of a person running clearly communicates to the consumer that the product provides five hours of energy, which he/she can then apply towards their physical activities.
The respondent noted that it has no control over the name of the product, which the Directorate accepts. However, there is no doubt that the phrases objected to by the complainant (including the product name) are capable of objective verification.
Irrespective of whether or not the name is owned and registered by the Licensor, the claim “5-Hour Energy®” creates an expectation that the product delivers five hours of energy to consumers. This is clearly capable of independent, objective verification. Similarly, the claims “Hours of energy*” and “Fixes tired fast™” are equally capable of such verification.
In support of its claims, the respondent relied on two studies. It is noted, however, that the respondent has not submitted independent verification from a credible expert in the field to which the claims relate. By the respondent’s own admission, this is a requirement of the Code, and it is unclear why the respondent has not obtained such verification or why it believes it is entitled to do so now, after having already published the advertising.
The reasons for having to obtain expert evaluation have been dealt with ad nausea in the past, and it is trite that the ASA cannot evaluate and interpret scientific literature in the manner that such an expert can.
A simple online search for “An evaluation of the cognitive and mood effects of an energy shot over a 6h period in volunteers. A randomized, double-blind, placebo controlled, cross-over study” reveals several links where reference is made to the study being associated with a certain errors. From the information available online at http://www.sciencedirect.com/science/article/pii/S0195666313003127, it appears that the error pertains to the amount of caffeine listed in “Table 1” of this paper, and also a URL included in error.
While these might seem benign, the ASA is not in a position to simply accept that these errors highlighted by the authors have no material impact on the advertising claims. This is part of the reason why the Code requires verification from an independent and credible expert.
In addition, the following concerns arise when considering the study as submitted by the respondent:
- The study appears to relate predominantly to cognitive functioning, whereas the advertising appears (by virtue of the image of a runner) to promote the products benefit for physical functioning.
- The study was done on sleep-deprived volunteers, expressly instructing them to limit sleep to between three and six hours only the night before tests would be conducted. The advertising, however, simply makes the efficacy claims as if they apply to anybody who consumes the product. Admittedly, the one claim “fixes tired fast” could be referring to this type of “tired”, but in the overall context of physical performance (running), the Directorate is not convinced that this is sufficient.
When scrutinising the study titled “Impact of Various Caffeine Vehicles on Mood and Cognitive, Neurpological [sic] and Physiological Functions Over Five Hours”, the first issue noted was that the study was done on college students (aged 18 to 22), and it is not immediately apparent from the study whether the findings are applicable to all people in general.
Again, this is where verification from an independent and credible expert is required. Without this, the respondent is effectively expecting the Directorate to interpret the research and pronounce on its advertising claims, something which the ASA is not able to do.
As was the case with the previous study, the effects studied all appear to relate to mental performance, which is at odds with the implied physical performance suggested by the advertising. The study tested, inter alia, mood, memory, reaction time during the tests, blood glucose variations, brain waves, heart rate etc.
While it appears to suggest that the product outperformed a Starbucks “DoubleShot” and Caffeine Powder in several instances, the question remains whether these findings are sufficient and adequate to support the advertised claims made in general for the product. It is also noted that the amount of caffeine in on 5-Hour Energy drink is listed as 200mg, whereas a Starbucks DoubleShot is listed as containing 130mg per drink. Without verification from an independent expert that this variance is negligible, and would not impact on the study or the findings, the ASA cannot do so.
The respondent has also not submitted any information about the respective authors beyond what is listed in the two articles, which makes it hard to determine whether or not these people meet the criteria of Clause 4.1 of Section II.
Finally, the respondent has not submitted anything to show that the dosage used during these studies match what it indicates on its product-packaging.
Given the apparent disconnect between a positive impact on physical performance (suggested by the image used in the advertising) and mental performance as evaluated in the studies, the Directorate cannot conclude that the claims of offering “5-hour ENERGY”, “Fixes tired fast” and “Hours of energy” have been adequately substantiated.
The fact that the respondent chose not to have the research articles independently verified by a credible expert means that the Directorate is unable to conclude that the claims have been adequately verified.
As such, the Directorate has to adopt a cautious approach, and find that the claims are, at present, not adequately substantiated within the meaning of Clause 4.1 of Section II of the Code.
Accordingly, the ASA has no alternative but to find that the respondent’s advertising for this product is currently unsubstantiated, and in breach of Clause 4.1 of Section II of the Code.
As a result, the respondent is instructed to:
- Withdraw the advertising at issue, along with references to the product’s name;
- Action the withdrawal of the advertising with immediate effect upon receipt of this ruling;
- Ensure that the advertising is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide; and
- Not use the advertising again in the current format again in the future unless new substantiation has been submitted, evaluated, and accepted in accordance with Clause 4.1.7 of Section II.
The complaint is upheld.
25 May 2015
Advertising Standards Authority of South Africa
Re: 5-hour Energy
An advert for 5-hour Energy was placed as a banner on a variety of online newspaper sites, as below.
I assert that the claims made in the advert, AND on the packaging, is unsubstantiated and therefore misleading to the average consumer. I also argue that the name of the product, 5-Hour Energy, is misleading and unsubstantiated.
The misleading claims in question include:
- The name of the product, 5-Hour Energy
- Hours of energy
- Fixes tired fast
A published peer-reviewed study in the Journal of Caffeine Research, the purpose of was to investigate the acute effects of a popular energy shot (5-Hour Energy®) on subjective and objective measures that were assessed hourly for 6 hours following consumption, concluded that “consumption of one energy shot may only result in modest benefits to subjective state”. (http://online.liebertpub.com/doi/full/10.1089/jcr.2014.0005)
The study made the implicit statement: “While the consumer may perceive improvements in subjective state, the benefits may not extend to objective performance.” In other words, consumers may think that they have more energy but this is not shown in objective performance. The claims being made for this product infers and suggests that energy WILL be improved and not that this is a perception without actual benefit of energy.
Furthermore, the study concluded that “[F]inally, and most importantly, the energy shot elevated both systolic and diastolic blood pressure for a sustained period of many hours.” This health concern is not reflected in the advertising, which is misleading for this would accurately convey the risk to the consumer and therefore does not give the consumer accurate information on which to base their choice and purchase. In other words, as the study pointed out: “The results of this study suggest that consumers should weigh the relative benefits and costs when considering the use of an energy shot” – and this is not conveyed in the advert, making it misleading to the average consumer.
This study is further elaborated upon in an article published in Runners World (http://www.runnersworld.com/nutrition-for-runners/what-happens-after-taking-a-5-hour-energy-shot) which states “Your mental performance won’t improve, but your mood while working at the same level of quality will temporarily be better. Meanwhile, your blood pressure will increase, perhaps enough to be of concern if you have a medical condition where blood pressure spikes aren’t advisable.”
It is pertinent that the serving size of 5-Hour Energy used in the study contains about 200 milligrams of caffeine, roughly equivalent to that in a strong cup of coffee. Certainly a claim of 5-Hour Energy for a cup of coffee would not be acceptable.
Three Unites States states – Oregon, Vermont, Washington – have filed lawsuits accusing 5-Hour Energy’s makers of deceptive marketing. (http://www.foodsafetynews.com/2014/07/states-sues-5-hour-energy-makers-for-false-advertising/). According to the Oregon complaint, the companies have violated Oregon’s Unlawful Trade Practices Act by promoting the product with “claims that are false, misleading and/or unsubstantiated by competent, reliable scientific evidence.” The Washington and Vermont complaints, also filed last week, made similar arguments.
“Plainly and simply, in Oregon you cannot promote a product as being effective if you don’t have sufficient evidence to back up your advertising claims,” Oregon Attorney General Ellen Rosenblum said in a statement. (http://www.today.com/health/5-hour-energy-drink-makers-sued-false-claims-1D79944518)
Consumer Reports have also investigated the claims for this product, concluding that “5-Hour Energy will probably chase away grogginess at least as well as a cup of coffee. The label warns against drinking more than two bottles daily.” (http://www.consumerreports.org/cro/2012/04/can-5-hour-energy-kick-your-afternoon-slump/index.htm)
Furthermore, this product, because of the dose of caffeine, is risky to children. This is not adequately communicated to children who will purchase this product and therefore the advertising for this product is not accurately placed in context, therefore making the advertisement misleading to the average consumer.
I therefore argue that this product makes misleading claims not substantiated by Clause 4.1 of Section II of the ASA’s Code states “Before advertising is published, advertisers shall hold in their possession documentary evidence as set out in Clause 4.1, to support all claims, whether direct or implied, that are capable of objective substantiation.”
“Documentary evidence, other than survey data, shall emanate from or be evaluated by a person/entity, which is independent, credible, and an expert in the particular field to which the claims relate and be acceptable to the ASA”.