It started as a simple trademark-infringement spat, with Red Bull, the Goliath of the energy-drink business, claiming the packaging of competitor Redline is “confusingly similar” to Red Bull’s.
But the brouhaha over Redline – made by Davie’s Vital Pharmaceuticals — has escalated, with each side now charging that the other’s drink doesn’t live up to claims touted on the packaging.
Red Bull calls Redline’s fat-burning boasts bogus, referring to a trademarked rhyme on Redline’s bottles that reads, “Feel the Freak / Feel the Freeze / Watch the Fat Drop / Off with Ease!”
Red Bull says its drink “improves performance” and “reaction speed” and “increases endurance” and “concentration.” Vital says those assertions are unsupported. The firm is challenging Red Bull’s purported benefits in Miami federal court.
The legal dispute turns a spotlight on whether popular energy drinks — a burgeoning realm of the soft-drink market — actually deliver on what they promise. It also raises questions about how such claims are regulated.
Policing such advertising claims is the job of the Federal Trade Commission, which has “no public cases involving any of these energy drinks at this point,” said Richard Cleland, the FTC’s assistant director of division advertising practices.
Any benefits the drinks offer can be attributed to the caffeine they contain, said David Schardt, senior nutritionist with the Center for Science in the Public Interest, a consumer-watchdog group in Washington. “They both exaggerate their claims,” Schardt said.
Lisa Dorfman, a sports nutritionist at the University of Miami, agreed. “I don’t find them any more effective than a good, strong cup of cafe cubano,” she said.
Still, the popularity of energy drinks is rising. They accounted for $3.5 billion of the $68 billion in carbonated soft drink sales last year, according to Beverage Digest. That’s up from about $2 billion in 2004.
“From the perspective of beverage companies and retailers, it’s a very, very high-priced and profitable category,” said John Sicher, Beverage Digest’s editor and publisher.
Launched two decades ago in Austria, Red Bull has been the king of energy drinks. But its share of the market slipped by 10 percentage points last year to about 37 percent as other brands gained fans, Beverage Digest data shows.
Redline didn’t make the publication’s list of the top sellers. Redline has been on the market for a few years in various forms, including gel caps and liquid concentrate, said Gregg Metzger, a lawyer representing Vital Pharmaceuticals, which does business as VPX Sports. Jack Owoc, company president, couldn’t be reached for comment.
Redline comes in 8-ounce plastic bottles, which feature a shade of blue that’s similar to the color on Red Bull’s 8.3-ounce cans. Too similar, to Red Bull’s liking. Its lawyers sent a cease-and-desist letter to Vital in October, demanding it stop using the Redline name and color scheme.
A week later, in a preemptive move, Vital sued Red Bull in Miami federal court seeking a judgment it wasn’t infringing on Red Bull’s trademark.
In court documents filed in March, Red Bull accused Vital of false advertising with its fat-burning claims. VPX’s website says Redline is a “scientific breakthrough” that coaxes the body to burn fat through the “shivering response” — similar to when someone shivers because they are cold. Redline describes itself on bottles as a “Fat Incinerator.”
As proof the claims are false, Red Bull noted the disclaimer on Redline’s bottle: ” ‘Do not use for weight reduction.”
“VPX stands behind Redline’s product,” Metzger said.
Red Bull’s charge, though, drew a sharp response in an April letter from Redline’s legal team.
‘Red Bull has a choice to make that brings to mind the old adage, ‘What’s good for the goose is good for the gander,’ ” the letter states. It warned that if Red Bull proceeded with its “spurious claims,” VPX would have no choice but to assert its own false-advertising claims against Red Bull.
The two sides unsuccessfully tried to settle their differences through mediation. Last week, U.S. District Judge Cecilia Altonaga granted Vital the right to pursue the false-advertising claims against Red Bull. Among other charges: Vital says Red Bull is a nutritional supplement subject to Food and Drug Administration regulations. Redline is considered a nutritional supplement.
Patrice Radden, a spokeswoman for Red Bull, said company policy is not to comment on litigation.