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NORMAN L. SMITH [SBN 106344] [email protected] EDWARD J. MCINTYRE [SBN 80402] [email protected] ALISON L. PIVONKA [SBN 156977] [email protected] SOLOMON WARD SEIDENWURM & SMITH, LLP 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (619) 231-0303 Facsimile: (619) 231-4755 Attorneys for HANSEN BEVERAGE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff, v. INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.
CASE NO. 08-CV-1166 IEG (POR) HANSEN BEVERAGE COMPANY'S NOTICE OF MOTION IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Date: September 15, 2008 Time: 10:30 a.m. Courtroom: 1 Hon. Irma E. Gonzalez
P:00437535:07565.158
NOTICE OF MOTION IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
08-CV-1166 IEG (POR)
Case 3:08-cv-01166-IEG-POR
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PLEASE TAKE NOTICE that on September 15, 2008, in the courtroom of the Honorable Irma E. Gonzalez located at 940 Front Street, Courtroom 1, San Diego, California, at 10:30 a.m., or as soon thereafter as the matter may be heard, Plaintiff Hansen Beverage Company ("Hansen") will move, and hereby does move, for an order preliminarily to enjoin Defendant Innovations, LLC dba Living Essentials from all activities that violate Section 1125 of the Lanham Act, including advertisements that use 5-hour ENERGY®, 5-Hour Energy, or any other advertisement that claims "5 hours of energy." This motion is based upon Hansen's notice of motion, Hansen's memorandum of points and authorities in support of its motion, the declarations of Rodney Sacks and Tom Davis, the exhibits lodged with this Court and the pleadings on file, and on such other evidence as may be presented at the time of the hearing.
DATED: August 8, 2008
SOLOMON WARD SEIDENWURM & SMITH, LLP
By:
/s/ Edward J. McIntyre NORMAN L. SMITH EDWARD J. MCINTYRE ALISON L. PIVONKA Attorneys for Hansen Beverage Company
P:00437535:07565.158
-108-CV-1166 IEG (POR) NOTICE OF MOTION IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
Case 3:08-cv-01166-IEG-POR
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CERTIFICATE OF SERVICE I caused the HANSEN BEVERAGE COMPANY'S NOTICE OF MOTION IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION to be served in the following manner: Electronic Mail Notice List Currently no defense counsel appear to be listed to receive e-mail notices for this case. Mailing List I served the following by email and Federal Express: Mark B. Mizrahi, Esq. Belasco Jacobs & Townsley, LLP Howard Hughes Center 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Of Counsel: Mark A. Cantor, Esq. Mark Lorelli, Esq. Brooks Kushman P.C. 1000 Town Center, 22d Floor Southfield, MI 48075 Telephone: (248) 358-4400 Facsimile: (248) 358-3351 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE
-208-CV-1166 IEG (POR) NOTICE OF MOTION IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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NORMAN L. SMITH ISBN 106344] [email protected] EDWARD J, MCINTYRE ISBN 80402] [email protected] ALrSOÑ L. PIVONKA ISBN 1569771 aoivonka @swsslaw.com SbLOMON WARD SEIDENWURM & SMITH, 401 B Street, Suite 1200 San Dieqo, California 9210L Telephoîe: (619) 231-0303 Facsìmile: (6L9) 231-47 55
LLP
Attorneys for HANSEN BEVERAGE COMPANY
UNITED STATES DISTRTCT COURT SOIJTHERN DISTRICT OF CAUFORNIA
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HANSEN BEVERAGE COMPANY,
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cAsE NO. 08-CV-1166 IEG (POR)
DECLARATION OF RODNEY SACKS TN
SUPPORT OF MOTION FOR
Delaware corporation, Plaintiff,
PREI.IMINARY ¡NJUNCTION
Date: Time:
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INNOVATTON VENTURES, LLC dbA LIWNG ESSENilALS, a Michigan corporation,
September 15, 2008
10:30 a.m.
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Courtroom:
Defendant.
Hon. Irma E. Gonzalez
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p:004144412
o7s6s.1sg
CASE
NO 08-CV-1166IEG (POR)
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Rodney Sacks declares:
]..IamtheChairmanoftheBoardandChiefExecut¡VeofficerofHansen
on my own Beverage Company ("Hansen"). The facts in this declaration are based
personal knowledge.
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Hansen Eeverage Comoany'
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2.
since 1992, Hansen has developed, marketed, sold, and dìstributed a variety
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of product lines in the specialty or "alternative" beverage category-including nonalcoholìc beverages such as sodas, fruitjuices, energy and sports drinks, smoothies, lemonades, and iced teas.
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Hansen Energy Drinks.
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In l-997 Hansen introduced Hansen's@ Energy Drinks'
Then, ìn April 2002, Hansen released the first of its popular Monster
Energy@ drinks, The line of Monster Energy@ drinks has since grown
to include the Lo-
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carb Monster, Monster Khaos, Monster Assault, Monster M-80, Monster Heavy Metal,
and Monster Mixxd energy drinks, which also use the Monster and Monster Energy@
trademarks and similar trade dress.
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drin ks.
5.
In 2004, Hansen introduced Lost@ Energy''Drinks and Rumba'"' ln 2005,
Hansen introduced Joker Mad Energy'" drinks, a low-carb version of Lost@ under the Perfect 10'u brand name as well as a new Lost@ Five-O'u energy drink'
6. 7.
In 2006 Hansen introduced Ace'u Energy drinks and Unbound Energy@
Hansen's energy drinks have been extremely successful and achieved
significant success throughout the United States. They are the favored energy drinks for
miìlions of customers. Hansen's energy drinks are sold by more than 1-00,000 retail stores, including convenience stores, gas stations, supermarkets, club stores, drug stores and warehouse stores.
g.
The most current Nielsen survey, June 28, 2008 demonstrates that Hansen's
Monster Energy@ in the 16 oz, can-the very product that Living Essentials attacks-is
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share of the now the market leader in the united States. overall, Hansen enjoys a 28.370
energy drink market.
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Competition.
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9'Theenergydrink¡ndustryishìghlycompetitive.Hansencompeteswith
"traditional" energy drinks, e.9. Red Bull Gmbh or The Coca-Cola Company'
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Hansen also competes directly with another line of energy-drink products
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or that market themselves as "energy shots." These "energy shots" typically come ìn 2
cans' oz packages-as opposed to the "traditìonal" energy drinks in B, 16 and 24 oz'
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ll.These"energyshots"competefìercelywith"traditional"energydrinks'
which they falsely characterize as "energy sodas" and "canned energy drinks-"
Direct Competítion Between Living Essentials and Flansen'
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l.2.LivingEssentialsadvertisescommerciallyandmarketsitscompetingenergy
drink products, each named S-hour ENERGY@, and each of which Living Essentials publicly claims produces five hours of energy.
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13.LivingEssentialscharacterizesitsenergydrinksas"energyshots"and
markets its products as "different" and "superior" to energy drinks'
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14.LivingEssentialsspecificallycontrasts¡ts"energyshots"notonlywith
"canned" energy drinks in general but specifically with Hansen's energy drinks'
15.
As Living Essentials, advertising makes clear, ¡t i5 attempting to lure away
potential customers to its 2 oz. drink-that it claims delivers five hours of energy and no
"crash"-as opposed to Hansen's 8 or L6 oz, drink].6'aneS-hourENERGY@advertisement,forexample,leavesnodoubtbyits
ingredient "contrast" that Living Essentials
¡s
targeting Hansen',s Monster Energy@ drink
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"popular canned in the 16oz can, even though it does not specifically identify the Hansen
energy drink" by name as Monster Energy@.
Líving Essentials' Advertisements-
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Living Essentials advertìses its S-hour ENERGy@ drinks across the united
States. I have personally seen Living Essentials'advertising-on television, in print, on its
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own website and on its Products
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on its drinks' 5-hour ENERGY@ conspicuously makes the following claims
conta¡ners:
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'. ' " '
drinks'containers:
"Hours of energY now" "No crash later" 'Feel it in mìnutes'Lasts for hours" "Sugar free" '0 net carbs"
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19'decafS.hourENERGY@conspicuouslymakesthefollowingclaimsonthe
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. ' '. . '
its own packages.
"Hours of energY now" "No crash later" "Feel it in minutes ' Lasts for hours" "Suoar free" "Deiaf ' "OnlY 4 calories"
20,LivingEssentials,falsestatementsarenotlimitedtotheadvertisementson
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One S-hour ENERGY@ commercial states:
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whv do enerov drinks make you crash? One minute you're wired up The , Ål'ü iJJåË1"'i"iiä ìñari uãtó* The ans*er is,larse ãmou-nts1l-1 :y.9.',-t:ld no dav ;;fi;í*, gut w¡tn 5-Hour Energy you could sail throuoh vouracidi wrthfocus, for ô;ài";gyr"d ãmíno iitters or crash. u .oniãi,ìrî'v¡íirå';; it in seco'ríds-and in minutes vou're i;;;'t;åtìää å'"iv ä'.àlõ*t Drink feeling lasts for hours' 5-Hour Enersv' íäií;;ãË,t;;iËioãuaiuê ãn¿that riãuriolén"rgy how.'No crash later. Available at these fine stores,
22.
Another 5-hour
ENERGY@.
commercial states:
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Whvareenerqvdrinksbad?12spoonsofsugar,that'sbad200calories' åäJ tËr,;di¡iÈ,'iiìÏ. cä"ð ròr ã short j¡te-ry bu_rst, then a dehabilìtatins ã.aî¡'.-iã ãäñi ãii"r direrõv ãiint
ö;;;;;.'i
23.
ln add¡tion, this 5-hour
ENËRGY@
advertisement is aimed directly at Hansen
and ¡t is the only major since its Monster Energy@ drink derives its calorìes from sugar
energy drink that contains guarana, a plant that provides caffeine'
24.
And another Living Essentials' advertisement claims:
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do ene,rgy This is vou after an energy drink. Unfortunately, so is this' Why -Óne you're wired up The next you.leel minute ài'ìñti ínãkà vou crash? worse than before. The answer is large amounts ot sugar and caflelne' ihat's whv vou should try a new liquid energy shot called 5 Hour Energy' w¡th s Hóu'r Enerqv, vou-can leave grogginess behind and sall tnrougn your åä" *iti'ãui tË"t¡ni'¡¡'ttêw, tense orloüknow. That's because 5 Hour acids å Ëö*iËtfúi¡lé"d ófe vitamins for enersv and amino There is zj',ro suoar, about as mucn ør-fõéui, ale,tnesi and better mood' just ót.o?tãðäña 6nlv 4 calories The 2-õunce shot takes productive ä:;ïå"tiåä;;t ã"iìn t¡ñri.t vóu're feeling bright, awake and ãnd that feelino lasts for hours So if your energy clrinK.makes y-gu .cras.nj. our lT ) swltch to 5 Hoúr Energy. Hours of energy now' no crash later' Flno "ti;; t;;rdÉ;isLiiõl you. 'lt;s availabJé at these fine stores' or for more information go to 5hourenergy.com
Ë;ilil;;i;;;
;'ff;¡Ë;;;.i,p
Living Essentials' Admission' 25.lnspiteofthename,S-hourENERGY@,andLivingEssentials'touting ,,energy,,onitsproductcontaìnersandthroughoutaflitsadvertizing.LivingEssentials
admits that its "energy product" produces no energy'
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When confronted with the obvious discrepancies between its disclosed
pharmacology ingredients and the generally accepted princìples of physics, biochemistry, and physiology, Living Essentials had to admit:
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If5.HourEnergycontainszefonetcarbohydrates,fromwheredoesitderive
its energy?
5-Hour Enerqv works to provide mpntal alertness' focus and improved mood ratheähan PhYsicâl energY" l-¡ving Essent¡als SpeÉif¡callv Targets Hansen ând ¡ts Products'
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Living Essentials' statements that energy drinks containing
spoons of
reference falsely sugar, that,s bad. 200 calories, bad' Guarana, tisk, tisk',, by clear
Essentials disparage Hansen energy drinks that contain the ingredients to which Living
refers.
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2S.LivingEssentials'statements-energydrinksare"goodforshortjittery The next you feel bursts, then a dehabilitating crash" and "one minute you're wired up.
and "with 5worse than before,'and "the answer is large amounts of sugar and caffeine"
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hour
ENERGY@
you can leave grogginess behind and still do your day without feeling
jittery and tense"-also by cfear reference to Hansen',s Monster Energy@ falsely disparage
and imputes adverse characteristics to and consequences of Hansen's energy drinks.
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such statements falsely suggest that Hansen's energy drinks contain large
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ENERGY@ amounts of sugar and caffeine which produce negative results that S-hour levels drinks do not-in spite of the fact that S-hour ENERGY@ drinks contain even higher
of caffeine than Hansen's energy drìnks.
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30.ThestatementsarealsoliterallyfalsestatementsaboutS-hourENERGY@,
Davis, Ph.D', based on Living Essentials'own admission and, as our scientist, Dr. Thomas
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principles of testifies, based on the drink's ingredients and the generally accepted
biochemistry, pharmacology and physiology. Hansen's lrreoarable Injury and Balance of Flardship'
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31.'LivingEssentìalsadmits,incouftandUSPTOfilings,thatitspendsmore
is very than $40 million on advertising through every media and that its advertising
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years and of successful. It claims sales in excess of $100 million in sales in only three
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more than $22 million in January and February 2008 alone-
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Living Essentials' literally false statements about its own products, and its
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false statements, by unmistakabie inference, about Hansen's energy drinks, have
influenced, and will continue to influenie, the purchasing decisions of substantial numbers of consumers and actually deceive or will have the tendency to deceive a substantial segment of the reasonable consumer audience'
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33.Hansenhassufferedandwillcontinuetosufferirreparableharmasaresult
5of Living Essentials'false statements-in particular the literally false statements about hour ENERGY@-because it is a practical impossibility for Hansen to "counter" Living
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of Essentials'false advertising both about its own product and its dìsparagement
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Rather' Living Thìs admiss¡on, howevet is not on any product container or ¡n any advertìsement ìts website-and well down the Page at that Essentials buries it among the FAQ5 o; a Page on Emphasis ¡s added.
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Hansen's.
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34AlthoughHanseninitiatedthisactionagainstLivingEssentialsonJulyl,
200sandserveditonthesameday,LivingEssentialshaspersistedinthesamefalseand this Court's advertisements. tts own conduct makes clear that' wlthout
misleading
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injunction,LivingEssentialswillcontinueinthesamecourseofconductandHansenwill
continue to suffer irreparable harm'
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35.IbelievethatLivingEssentials,adshaveadverselyaffectedHansen,ssales,
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eventhoughlcannotquantifypreciselybyhowmuch;certainlythattheyaremostlikely
to do so into the future.
Hansen for the Money damages are patently inadequate to compensate Hansen cannot know or harm it has and will continue to suffer precisely because
36.
t2 accuratelymeasuresalesithaslostasadirectoratleastessentialresultofHansen
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customerspurchasingLivingEssentials'productsinsteadofHansen,sspecificallybecause or accurately measure of Living Éssentials'false advertising Hansen also cannot know potential customers having been lost as a direct or at least substantial result of
sales
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driven awaY.
California and the I declare on penalty of perjury under the laws of the State of
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UnitedstatesofAmericathatthefactsinthisdeclarationaretrueandcorrect,basedon
science expert which I believe my own personal knowledge and on information from our
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to be true and correct, and that I executed this
August 7, 2008.
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P:00434441.2:07565.158
CERTIFICATE OF SERVICE I caused the DECLARATION OF RODNEY SACKS IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION to be served in the following manner: Electronic Mail Notice List Currently no defense counsel appear to be listed to receive e-mail notices for this case. Mailing List I served the following by email and Federal Express: Mark B. Mizrahi, Esq. Belasco Jacobs & Townsley, LLP Howard Hughes Center 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Of Counsel: Mark A. Cantor, Esq. Mark Lorelli, Esq. Brooks Kushman P.C. 1000 Town Center, 22d Floor Southfield, MI 48075 Telephone: (248) 358-4400 Facsimile: (248) 358-3351 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE
DECLARATION OF RODNEY SACKS IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
-7-
CASE NO. 08-CV-1166 IEG (POR)
Case 3:08-cv-01166-IEG-POR
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NORMAN L. SM|TH ISBN 106344] nsm¡[email protected] EDWARD J. MCINTYRE ISBN 80402] emci [email protected] ALTSON L. PTVONKA ISBN 1569721 [email protected] SOLOMON WARD SEIDENWURM & SMITH, 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (61 9) 231-0303 Facsimile: (619) 231-47 55
Attorneys for HANSEN BEVERACE COMPANY
LLP
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UNITED STATES DISTRICT COURÏ
SOUTHERN DISTRICÏ OF CATIFORNIA
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HANSEN BEVERACE COMPANY, Delaware corporation, Plaintiff,
A
CASE NO, OB-CV-I 166 IEC (POR)
DECLARATION OF THOMAS P. DAVIS, Ph.D. IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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Date:
INNOVATION VENTURES, LLC dbA LIVINC ESSENTIALS, a Michigan corporation,
Defendant. Time:
Courtroom:
September 15, 2008 10:30 a.m.
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Hon. lrma E. Conzalez
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'rt
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P:o0434482.07 565.158
CASE NO. O8-CV-1
,I66
IEC (POR)
Case 3:08-cv-01166-IEG-POR
Document 7-4
Filed 08/08/2008
Page 2 of 12
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Thomas P. Davis, Ph.D. declares:
,
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1.
I am and have been Hansen Beverage Company's ("Hansen") Technical
Director continuously since January of 1981. lam and have been a Professor of Medical
Pharmacology, also continuously sinceJanuary of 1981. I have a Ph.D. in physiology and
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biochemistry, awarded in 1978 from the University of Missouri. I had posfdoctoral traìning
at a major pharmaceutical company from 1978 to 1981. I attach the first four pages of my
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curriculum vitae as Exhibit
1.
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2.
I have extensive experience in both juice (since 1964) and carbonated
beverages (since 1980). I am familiar with the ingredients of and the advertisements for
Living Essentials' S-hour ENERCY@ drink.
3.
its
S-hour ENERCY@ conspicuously makes these claims on the current labels on
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drink containers:
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"Hours of energy now" 'No crash later" "Sugar free" "0 net carbs" "Feel it in minutes r Lasts for hours"
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Based on Living Essentials'own admissions
in its adverlisements and labels
and based on the drink's ingredients and the generally accepted principles of biochemistry, pharmacology, and physiology, in my expert opinion, in addition to Living Essentials' claims, the product's very name, S-hour ENÊRCY@, is a literally false claim about this
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product, as it necessarily states or at least implies that the product produces five hours of
energy.
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5.
As I explain below, this product does not, and cannot, produce energy¡ a
24
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defined scientific term, for the period of time that Living Essentials claims, in any measurable amount (if its products produce energy at all) and certainly not five hours of energy.
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understand that Living Essentials even admits on its web site that its products do not produce
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"physical energy." As lexplain below, energy is a measurable physical fact.
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ln add¡tion, for the same reasons, Living Essentials' claims-specifically, "5-
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Hour Energy;" "Hours of energy now;" "No crash.later;" "Feel it in minutes," "Lasts for
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hours;"-are literally false statements about S-hour ENERCyo. Let me explain why.
7.
By way of introduction, I should explain that "energy" is a scientific term and
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is defined in all physics textbooks and
all biochemistry textbooks
as
well as in online
resources such as Wikipedia. This is a portion of Wikipedia's discussion: "Energy is often
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defined as the ability to do work.... ln biology, chemical bonds are broken and made during metabolic processes, and the associated changes in available energy are studied in the subfield of bioenergetics. Energy is often stored by cells in the form of substances such
as
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10
11
carbohydrate molecules (including sugars) and Iipids, which release energy when reacted
with oxygen." (http://en.wikiped ia.org/wik
i/E
nergy.)
B.
There is a direct relationship between calories and energy. "Throughout the
12 13
history of science, energy has been expressed in several different units such as ergs and
calories. At present, the accepted unit of measurement for energy is the Sl flnternational
System of Unitsl unit of energy, the
14
15
joule." (http://en.wikiped ia.orglwiki/E nergy.) Food
energy, however, is often stated in calories, and the conversion from joules to energy calories is a simple mathematical exercise: one joule is equal to 0.239 energy calories. ffhe
16 17 18 19
scientific term Kilocalorie, 1000 energy calories, is equivalent to the term used by food nutritionists, "Calorie," often used with a capital "C" to avoid confusion.l
9.
A human being requires a ceftain number of calories of energy every day,
20
2'.1
even without exercise, simply to exist. These calories of energy are required to maintain
what is known as "basal metabolic rate" (BMR) in any man or woman/ and an average BMR
rate is about 1266 Kcal or food Calories per day. This is the basic requirement even if that
,.,
23 24
25
person was at rest all day. This daily requirement, or BMR rate, breaks down to about 53
Kcaf
ories per hour or 0.879 Kcalories per minute. Of course, a moderate amount of exercise
per minute, hour, day, or week increases the basic requirement dramatically.
26
J'7
10.
Mental energy or brain metabolism is defined scientifically
as
the degree or
level of glucose metabolism in the brain. lt can be followed carefully by imaging techniques in humans and is easily quantified. The brain uses glucose as a source of energy and will
28
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starve the rest ofthe body's stores of glucose if needed to supply the brain. ln times of severe starvation, the brain may use free fatty acids to survive but this is usually near death'
t
3
1.1.
Mental energy can be thought of as cognitive ability or the ability to reason or
as
4
5
intelligence quotient. Reason, cognition and integration, however, all require glucose
the
energy source. Brain neurons cannot fire without glucose as they also require calories in the
6
7
form of glucose to function.
12.
Without glucose to deliver to the brain, one can die. The brain needs many
I I
10
11
calories per minute, per hour, per day, consuming 20olo of total calories available to the human body. lt is the second most calorie dependent organ in the human body; the liver first because of .its size. ln faci, there is no type of human energy that does not require consumption and burning of calories. The only energy-yielding nutrients are proteins,
carbohydrates, alcohol, and fats.
is
12
13
13.
There are no calories in vitamins' As a result, vitamins cannot be energyas co-factors of energy producing
14
15
yielding nutr¡ents. vitamins can aid energy production
cellular reactions, but alone they provide no calories' ln other words, they cannot be
broken down for energy.
16
17 18
19
14.
Similarly, for all practical purposes, amino acids contain no caloric energy.
Again, only fats, carbohydrates, alcohol, and proteins contain calories. Single amino acids do not contribute to a human's energy requirement in calories. However the single amino acid Taurine does function to stabilize and "strengthen" the cardiac muscle cell and support
cardiac cell performance. This role is unique to Taurine.
20
21
J''
23
'15.
A current 5-hour INERCY@ commercial states:
24
25
26
27
2A
Whv do enersv drinks make vou crash? One minute you're wired up. The nexi vo, feelivorse than befóre. The answer is large amounts of sugar and caffei'ne. But with 5-Hour Energy you could sail through your day with no iitters or crash. lt contains B Vitamins for energy and amino acids for tocus, 2ero suear and onlv 8 calories. Drink it in seconds and in minutes you're feeling ãlert and pr'oductive and that feeling lasts for hours. 5-Hour Energy. Hours'of energy i-row. No crash later. Available at these fine stores.
16.
ln my expert opinion, Living Essentials' claims that "with 5-Hour Energy you
B
could sail through your day with no jitters or crash" or that it "contains
Vitamins for
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1
energy// or that one can "drink it in seconds and in minutes you're feeling alert and
,
3
productive and that feeling lasts for hours" or that S-hour ENERCY@ provides "Hours of
energy
now. No crash later" are, based on the drink's ingredients and generally
accepted
4
5
principles of biochemistry, pharmacology and physiology, literally false statements about 5hour ENERCY@. These claims and the others I discuss below are both materially and literally
fa Ise.
6 7
17.
Another S-hour ENERCY@ commercial states:
I I
10
11
Why are energy drinks badz. '12 spoons of sugar, that's bqd, 20O calories, bad. Cuárana, tisk;iisk. Cood for a sh'ort jittery bùrst, then a dehabilitating crash. So don't drink energy drinks, drink 5-Hour Energy. lt's not a drink, more Iike a sip. Well with thatiip you'll feel alert and focused for hours, without the crash or jitters. lt has zero sugar, only 4 calories and no guarana. 5-Hour Energy. Hours of energy now. No crash later.
i
12 13
L
ln my exped opinion, Living Essentials' claims in this
as
well
as
additional
advertisements that "you'll feel alert and focused for hours without the crash or jitters" or
14
15
that S-hour ENFRCY@ provides "Hours of energy now. No crash later" are false based on the
drink's ingredients, the concentration of those ingredients, and generally accepted principles
of biochemistry, pharmacology and physiology.
16 17 18 19
19.
And another Living Essentials' advertisement claims:
20
21
.,J 23 24
25
This is you after an energy drink. Unfortunately, so is this. Why do energy drinks make you crash? Ône minute you're wired up. The next you feel worse than bèfore. The answer is large amounts of sugar and caffeine. That's why you should try a new liquid energy shoi called 5 Hour Energy. With 5 Hoùr Energy, you ôan leave grogginess behind and sail through your day without feéiing jittery, tense or, you know. That's because 5 Hour Energy contains a poriérful blend of B Vitamins for energy and amino acids forJôcus, alertness añd better mood. There is zero sugar, about as much caffeine as a cup of coffee and only 4 calories. The 2-ounce shot takes just seconds to dri'nk and in minutes you're feeling bright, awake and productive and that feeling lasts for hours. So if your energy drink makes you crash, switch to 5 Hour"Energy. Hours of enerly now, nio crash later. Find out if 5 Hour Energy is right for you. lt's available at these fine stores, or for more information go to 5hou renergy.com.
26
't'7
20.
"with 5-hour
ln my expert opinion, Living Essentials' claims in this
as
well
as additional
adveñisements that S-hour ENERCy@ provides "Hours of energy now. No crash later" or
ENERCy@
28
you can leave grogginess behind and still do your day without
DAVIS, Ph.D. IN
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1
feeling,jittery and tense or that "S-hour ENTRCY@ contains a powerful blend of B Vitamins for energy" are false based on the drink's ingredients, the concentrat¡on of those ingredients,
and generally accepted principles of biochemistry, pharmacology, and physiology.
)
3
4
5
21.
ln my expert opinion, if Living Essentials' claims in its advertisements and on
its product containers-thaf S-hour ENERC)Æ provides "hours of energy now," or "sail
6
7
through your day with no jitters or crash," or "in minutes you're feeing alert and productive
and that feeling lasts for hours, or " S-hour ENERCy@,'or "Hours of energy now. No crash
I I
10
11
later," or "Feel it In minutes lasts for hours" or "feel alert and focused for hours, without the
crash or jitters"-derive from the ingredients Living Essentials actually discloses and/or that are contained in their products, then those claims are false based on generally accepted
principles of biochemistry, pharmacology and physiology and S-hour
does not produce the effects claimed.
ENERCY@
cannot and
12 13
22.
d
ln my expert opinion, 5-hour
ENÉRCY@ Decaf's ingredients, at least as
14
15
isclosed-"sug ar frce," "DecaÍ," "6 mg. of caffein e," " only 4 calories"-given generally
accepted principles of biochemistry, pharmacology, and physiology, do not and cannot
',6
17 18 19
provide "Hours of energy now," "Feel it in minutes
'
Lasts
for hours," "No crash later,"
as
Living Essentials claims. Those claims are also false based on the products'ingredients, in
particular, the limited amount of caffeine and sugar, at least to the extent disclosed on the
applicable container labels and/or that are contained in their products. lt is true that specific
doses of caffeine can improve performance, mental acuity and wakefulness, but advertising
20
21
"hours" or "S-Hours" of energy is false given the doses present in S-hour ENERC)Æ'
t',
23 24
25
23.
In my expert opinion, 5-hour ENERCY@ Extra Strength's claims, including its
claim derived from the name of the product itself, are false, based on the product's claims to
be "sugar free" and "only 4 calories" and the product's other ingredients disclosed on the
applicable container labels and/or that are contained in their products, given generally
accepted princlples of biochemistry, pharmacology, and physiology.
26 27 28
24.
Even if Living Essentials were to argue that the Court should ignore every
conventional definition ol " energy" l discussed in paragraphs 6 through 13 and accept some
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1
2
3
convenient broader definition of ¿energized feering," as suggestd by the srnafl print on Living Essentials' web'sitg in my expert opinion, the rever of caffeine present in 5-rrour
ENERCY@ is not adequate
to support the product craim of "hours" or ,s Hours of Energy, set
4
5
out above' caffeine can and
wiI
contribute to a ,,feering of improved mentaf act¡vity, and a
6
I I
10
'feeling of being energized" but not for the rength of t¡me advertised by S-rrour [NERCy@. 25. First, Living Essentials' caffeine-free product, Decaf S-f¡our [NERC]@ has little caffeine and therefore cannot claim any extended .energized feeling.n Second, Living
Essentials' products containing caffeine do not and cannot produce any ,energized feeling,
1t
72 13
74
t5
16 17
T8
for the period of time craimed. caffeine is rapidly absorbed from the human gut and d¡stributes throughout the entire body where the peak blood level is reached in some 30 minutes with a biologicar harf-rife of 4 hours or ress at the revers contained in 5-f¡our [NERcy@. (c.8. Kapran, er ar', J' crinicar pharmacorogy 3 7:693-7o3 í 99Ð; H,c. Mander, tood and Chemical Toxicology 4O:1231_34 (2002).) Based on these facts, the S_åou¡ ÈNERGYP name, which expressry or impriedry represents that Living Essentiars,products produce five hours of energy, and ceftain other craims, farsery represent Living Essentiars, products' attributes because 5-I¡our ENERCy' does not have enough cafories or caffeine to support the product claims.
I declare under penalty of perjury under the laws of the state of
california and the
l9
20
21
united states of Ameríca that the facts in this decraration are true and correct, based on my own personal knowledge and on generally accepted scíence whích I believe to be true and
correct, and that I executed this declaration
on lugust
22
7,
zoOe.
2!
24
25
26 27 28
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P:00434482.07565.158
CERTIFICATE OF SERVICE I caused the DECLARATION OF THOMAS P. DAVIS, Ph.D. IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION to be served in the following manner: Electronic Mail Notice List Currently no defense counsel appear to be listed to receive e-mail notices for this case. Mailing List I served the following by email and Federal Express: Mark B. Mizrahi, Esq. Belasco Jacobs & Townsley, LLP Howard Hughes Center 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Of Counsel: Mark A. Cantor, Esq. Mark Lorelli, Esq. Brooks Kushman P.C. 1000 Town Center, 22d Floor Southfield, MI 48075 Telephone: (248) 358-4400 Facsimile: (248) 358-3351 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE
-7CASE NO. 08-CV-1166 IEG (POR) DECLARATION OF THOMAS P. DAVIS, Ph.D. IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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CURRICULUMVITAE
Thomas P. Davis, Ph.D. Department of Medical Pharmacology The University of Arizona College of Medicine Tucson, Arizona 85724 (s20) 626-7643; (s20) 626-4053 (FAX) E-mail : _d_a_v_i,[email protected]¿,.qduWeb site: http://www. d avislab. med. arizona. edu/
I.
EDUCATION A, INSTITUTIONS, DEGREES & DATES AWARDED: 8.S., Biolog¡ Loyola University of Los Angeles. June 9, 1973.
M.S,, Physiology, University of Nevada, Las Vegas. May 18, 1975 Ph.D., Ph¡siologyiAnal¡ical Biochemistry, University of Missouri-Columbia. December 16, 19'18.
B,
MAJOR FIELDS: Major emphasis in research is in the areas of cent¡al nervous system pharrnacodynamics, neuropharmacology, newochemistry molecular biology and pathophysiology ofthe
blood-brain barrier endothelium after peripheral inflammation/ hypoxia reperfusion/strokeþain/ pathological insult.
&
NEUROPTIARMACOLOGY/NEUROCHEMISTRY/MOLECULAR NEI]ROENDOCRINOLOGY Molecular regulation, protein trafñcking and functional changes ofthe blood-brain ald blood-ce¡ebral spinal fluid baniers after stroke, hlpoxia, or inflammatory parn
The effects of peripheral and neuropathic pain on the molecular and functional t¡ansporter characteristics of the blood-brain barrier and tight junction protein cytoarchitecture.
BIODISTRIBUTION/ PIIARMACOKINETICS/ PHARMACODYNAMICS Biochemical, molecular and physiological characterization ofthe blood-brain and bloodCSF barrier and the effect of barrie¡s on drug delivery to the CNS. Pharmacokinetics of central drug disposition including opiates. Bioavailabilityi PKA of neuropharmaceuticals and neutraceuticals '
PRESENT TEACIIING RESPONSIBILITY
Medical Pharmacology for Graduate Students- PHCL 5014 (Course Director) Under$aduate Senior Resea¡ch Practicum - MCB 494 Biochemistty 499. Undergraduate Independent Study - Chem 399, MCB 399, NRSI 399. Cardiovascular, Pulmonary and Renal (CPR) Block ofCase Based Instruction (CBI) to First Year Medical Students.
II.
P:
PROFESSIONAL AND ACADEMIC EMPLOYMENT 1973-1975 Graduate Research Assistant, Dr. David Bruce Dill's Laboratory of Applied Physio'logy, Desert Biology Research Institute, Boulder City, NV
DAV.CV
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lg:-5-1978
1978-1980
198 l -
1986
1986-1992 1986-1991
Graduate Resea¡ch Assistant, Dr. Charles W. Gehrke's Experiment Station Chemical Laboratory, Departrnent of Biochemistry, University of Missouri - Columbia. Analytical,iDevelopment Chemist, Therapy Monitoring Venture Group, Abbott Diagnostics Division, Abbott Laboratories, Abbott Park, IL. Assistanr Professor - Pharmacology and Director, Laboratory of Analytical Chemistry and Mass Specfrometry, University of Arizona Health Sciences Center. Founding Director, The Arizona Cancer Center Analytical Core Laboratory. Member, Pharmacology/Toxicology Graduate Program and Arizona Cancer Center. Senior Resea¡ch Fellow, NASA Center for Separation Sciences, University ofArizona Biophysics Technology Laboratory Engineering Experiment Station, College of Engineering.
Associate Professor - Pharmacology and Director, Laboratory ofAnallical and Peptide Chønistry, University of Arizona Health Sciences Center. Membe¡, Arizona Cancer
Centet.
l99l -present Professor - Pharmacology and Program in Neurosciences. Founding Director, Laboratory ofBlood Brain Ba¡rier Research, University ofArizona Health Sciences
Center. Member, Arizona Cancer Center. Special Volunteer, NIH. National Cancer Institute, Biomækers and Prevention Research Bra¡ch, Rockville, MD. lggg-2007 Chai¡, External Advisory Committee. The Aging Brain: Cereb¡ovascula¡ Mechanisms. Multi-institutional Program. University ofRochester and Socratech Biotechnology lnc., Rochester, New York. 1999-2006 Founding Director, Program in Resea¡ch Integrity Education, Office ofthe Vice Ptesident for Research and Graduate Studies, Universify ofArizona 1999-present Member, Physiological Sciences Graduate Program and Neuroscience Graduate Program, UniversitY of Arizona 2005-present Professor, Bio5 Institute, University of Arizona.
1994-1995
III.
HONORS &AWARDS
Academíc Scholarshíp awørdee to attend Loyola University of Los Angeles ( 1969- 1973) David Bruce Dill Awardee and Scholar inBnvironmental Physiology, University ofNevada (1975). Member, Sigma XI - Honorary Research Society of North America ( 1977) International Youth in Achievement Award, University of Missouri ( 1978). Member, Gamma Sigma Delta - Honorary Agriculture Society, University of Missouri (1978). Abbott Didgnostics Divßion CertiJìcate of Appreciation Award, Abbott Laboratories Inc., (1979). Member, Ilho's l(ho in the west, u.s., world and Frontier's of science and Technology (1985). Fellow, American Institute of Chernists (F.A.I C.)'October, 1986 Menber, Phi Beta Kappa Honorary Society (1995) Member, Neurological Sciences III Study Section, National Institutes of Health, N.LN.D.S. April 1992 to 199ó. Brain Disorde¡s Clinical Neurosciences (BDCN-3) Study Section, July 1996 to 2002. Fe I I o w, lntetnatjonal Neuropeptide Society July' I 998' Member,International Organizing Committee,4th International Conference of Cerebral Vascular Biology, Cambridge University, Cambridge LJK, Aptil 7' 12' 200I' (Jniversity of Arizona Award from Chair of General Faculty and Facuþ Senate, University ofArizona, "Extraordinary and Expert Service to the General Facuþ ofthe University," March 5, 2001' Member,International Organizing Committee, 5th International Conference of Cerebral Vascula¡ Biology, Texas Tech University, Ama¡illo, TX June 15-19,2003. Volunteer of the Year Award, Salpointe Catholic High School, Tucson, AZ. 2002-2003 ' Member, Loyola-Marynnount University, College of Science and Technology, 'llumni Wall of Fame," awa¡ded October 1 8, 2003. Member, American Heart Association Brain 2 Study Section. January, 2004. Medallion of Appreciation, Salpointe Catholic High School Administartion and Faculty. Awarded September 10, 2006. Elected Chair, Gordon Research Conference, "Baniers of the CNS". Jtne 17-22,2008.
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IV,
TEACHING A. COURSESTAUGIIT: 1. PIIARMACOLOGY 501/801; The Pharmacological Basis of Therapeutics Enrollment: 100-120 Medical and Graduate Students; Spring, 1985 (Didactic lectures)
General Princþles
2.
3. 4.
5. 6. 7.
Alcohol Vitamins Gout Drugs ofAbuse Spring, 1987 to 2006 (Patient Oriented Problern Solving, and Small Group Teaching) 10 x 3 hour blocks per Year. Pharmacokinetics Applied to Asthma Cancer Drugs TreaÍnent of essential hypertension Toxicology TreaÍnent of congestive hea¡t failu¡e Complications of analgesic therapy Treatment of Myocardial Infarction Antithrombotic TheraPY Narcotics/Analgesics Spring, 1992 to present (Didactic lectures) Narcotics/Analgesics Drugs ofAbuse PHARMACOLOGY653;Neuropharmacology Enrollment: 20-25 ; Fall, 1985 to 1996. Synthesis and Processing of Neuropeptides Analltical Techniques in Neuropharmacology Laboratory: HPLC Anaþis of Peptide Metabolites PHARMACOLOGY55O; Drug Metabolism and Disposition Enrollment: 30; Fall, 1985; 1986 Separation and Analysis of Drug Metabolites Structural Assignmetts by Mass Spectrometry PTrySIOLOGY 501/801; Medical Physiology Enrollment: 100-120; Spring, 1985; 1986; 1987; 1989; 1990; 1991;1992;1993;1994to 2001. Temperature Regulation in Man Adaptation to Heat P¡oblem Based Leæning (16 hour blocks). PIIARMACOLOGY 551; Molecular Biology of Pharmacological Agents Enrollment: 20; Fall I 989 ; 199 I ; 1992; 1993 ; 199 4; 199 5 ; 199 6. Regulation of Neuropeptide Gene Expression PHYSIOLOGY,{\4EDICINE 495 AIB; Principles of Neuroscience Enrollment: l5-20; Springi Fall, 1988 Centrally Active Drugs Drugs ofAbuse MOLECULAR AND CELLULAR BIOLOGY 494; Independent Study for Under$aduates Enrollment: 2-3 per semester. 3 credit hours per student per semester. Spring/Fall, 1 985 ; I 98 6 ; I 987; I 990; 199 | ; 1992; 1993 ; 199 4; 1995 ; 1996; 1997. Effect of Opioid Peptides on Mu, Kappa and Delta Receptors. Methods to Control Microflora in Juice ConcenÍates. Solid Phase Synthesis of Neuropeptides. Effect of Cell Passage Number and Mycoplasma on C¡togenetics ofSCLC Cell Lines.
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Chæacterization of Proteolytic En4'rne Metabolism Using Computer Modeling
Techniques. Use of MTT Assay to Predict Neuropeptide Effects in SCLC Cell Growth. Development of a Specific and Sensitive Assay for Aminopeptidase M and Leucine. Aminopeptidase: Application to SCLC Inhibition Studies. Effect of Peptide Structure on .1,, Vitro BtvymattcMetabofism. Effect of Peptide Sfucture on Binding to Human Plasma. Effect ofPeptide Structure on Permeability through the Blood-Brain Barrier. Demonsffation of Prohormone Convertase nRNA in Small Cell Lung Cancers. MOLECULAR AND CELLULAR BIOLOGY 2óó; Principles of Neural and General
8.
9.
10.
11.
t2
l3
t4.
15.
Pharmacology Enrollment: 60; Summer 1991 CLINICAL ROI-INDS, Department of Neurology Enrollment: 5-20; Spring 1992; 1993 Graduate Level Lectures to Neurology Residents Concerning Poþeptide Hormones. PHARMACOLOGY 696 A, Introduction to PHCL and TOX Resea¡ch Enrollment: 2-6 per semester for 3 øedit hours per semester; Fall 1992 to present Graduate Level Course Offered to Graduate Students . Director of Course. PHYSIOLOGY 485, Undergraduate Physiology Course in Ca¡diovascular Physiology Enrollment: 50 per year for 4 credit hours per semester; Spring 1999 to 2005. PHYSIOLOGY 549, Survival Skills a¡d Ethics. Graduate Course offered each Spring. En¡ollment: 50 per year for 3 credit hours per semester; Spring 2000 to 2005 PHYSIOLOGY 700, Research Methodology and Physiological Sciences Graduate Course offered each semester. Effollment: 2 per year for 3 credit hours per semester; Spring 2000 to
present.
16.
t7.
PUBLIC IIEALTH 696, Research Methodology and Design. Graduate course offered each semester. Enrollment: 10; FaIl 2001 to 2006. PHARMACOLOGY and NETIROSCIENCE 5958, Strategic Scientific Writing and Ethics. Enrollment: 40 Fall2003 to present. PHARMACOLOGY 5014, Medical Pharmacology for Graduate Students. 3 credit course offered each Spring Semester. Director of Cours¿. Enrollment 14. Spring 2008 to present CASE BASED INSTRUCTION (CBI), Cardio/Pulmonary/Renal (CPR). Medical Student Instruction offered every Spring to 15 First Yea¡ Medical Students.Spring 2007-present.
(Revised:
July
11,
2008)
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CERTIFICATE OF SERVICE I caused the HANSEN BEVERAGE COMPANY'S NOTICE OF LODGMENT IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION to be served in the following manner: Electronic Mail Notice List Currently no defense counsel appear to be listed to receive e-mail notices for this case. Mailing List I served the following by email and Federal Express: Mark B. Mizrahi, Esq. Belasco Jacobs & Townsley, LLP Howard Hughes Center 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Of Counsel: Mark A. Cantor, Esq. Mark Lorelli, Esq. Brooks Kushman P.C. 1000 Town Center, 22d Floor Southfield, MI 48075 Telephone: (248) 358-4400 Facsimile: (248) 358-3351 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials /s/ Edward J. McIntyre EDWARD J. MCINTYRE
-208-CV-1166 IEG (POR) NOTICE OF LODGMENT IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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