Free Notice Regarding Exhibit Attachment - District Court of California - California

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EXHIBIT A TO DECLARATION SCOTT OF

HENDERSON

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Case# 0000 (03/00/07) LIVING ESSENTIALS 5-Hour Energy Advertising Agency: Challenger: Product Type: Issues: Disposition:

Monitoring~ Dietary Supplement Performance Claims Modified~Discontinued

Controlled, double-blinded, independentclinical study conductedon the productitself found to support performance claims. Basis of Inquiry: As a part of its ongoingmonitoring program,and in conjunction with NAD's initiative with the Council for Responsible Nutrition ("CRN") designed to expand NAD review of advertising claims for dietary supplements, NAD inquired about certain print advertisements disseminated by Living Essentials for its 5-HourEnergy supplement.Theadvertising, print, Internet and television, included the followingclaims: "When were a kid, you felt like you had energy to spare. Nowyou can get that you feeling back with 5-Hour Energy®." "Just one quick drink and you'll get hours of energy for work, play and everything in between." "It's a great wayto stay focused and alert on the job, experiencebetter workouts and reduce fatigue." "Hoursof energy now. No crash later--and no jitters." "B- Vitaminsfor energy." "Aminoacids for focus and better mood." "Enzymes help you feel it fast." to "Zero sugar, zero net carbs, zero herbal stimulants." "Drinkit in seconds. Feel it in minutes. Last for hours." Advertiser'sPosition: Living Essentials maintainedthat all of its claims are supported by (1) publicly available scientific evidenceconcerningthe effect of each of the product ingredients on bodyphysiologyand function, and (2) a double-blind, placebo controlled, randomized clinical trial on Living Essentials' 5-HourEnergy® product.

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Living Essentials explained that 5-HourEnergy® in a family of competingbeverages, is including, amongothers, Red Bull®, Monster®,and RockStar® and that all make enhancedenergy and concentration claims based on the scientific evidence associating two principal ingredients found in each product, caffeine and taurine, with those physiological effects. 5-HourEnergy®,Red Bull®, and RockStar® also contain Bvitamins that support metabolic energy production and ATP regeneration. Only 5-Hour Energy®, stated the advertiser, contains all of the followingingredients: taurine; caffeine; D-glucuronolactone; malate; n-acetyl-l-tyrosine; l-phenylalanine; niacin; vitamin B6; vitamin B-12; folic acid; vitamin C; and a proprietary enzyme formulation. Theadvertiser submitted a scientific report of Dr. MichaelJohn Glade, explaining the mechanism action for the energy enhancingeffects of the taurine, caffeine, and Dof glucuronolactone combination contained in 5-HourEnergy® added that this science and is well-known,and generally accepted in the scientific community. Living Essentials maintained that the quantitative amountsand forms of ingredients contained in 5-Hour EnergyDrink for each ingredient mirror that in the scientific literature documenting the claimed physiological effects. Living Essentials quoted Dr. Glade's report explaining howthe ingredients in 5-HourEnergyworkto stimulate the body's lipolysis of stored triglycerides, to stimulate release of fatty acids fromadiposetissue, to stimulate the 13oxidation of fatty acids released fromadiposetissue storage depots, and to stimulate the conversionof stored triglycerides into energy(ATP): The[] concerted actions of taurine, caffeine and D-glucuronolactone increase ATP production, energy availability and daily energy expenditure. Theseactions are initiated rapidly followingingestion of taurine, caffeine and D-glucuronolactone; for example, both aerobic and anaerobic cycling enduranceare increased within 30 minutes of their consumption.Thesenutrients act individually. The consumption taurine increases whole-body,skeletal muscle and heart muscle of powerand endurance. The consumptionof caffeine increases feelings of "energy." Againquoting Dr. Glade'sreport, the advertiser asserted that in addition to those effects of taurine, caffeine, and D-glucuronolactone, advertiser maintainedthat the scientific the evidencesupports the following conclusions concerningingestion of the malate, tyrosine, VitaminC, niacin, vitamin B6, vitamin B12, and folic acid in the product: The consumptionof malate supports sustained ATPproduction during physical activity. The daily consumption vitamin C, niacin, vitamin B6, vitamin B 12, of and folate supports the utilization of fatty acids for metabolicenergyproduction and ATPregeneration. The consumptionof N-acetyl-L-tyrosine enhances sympathetic nervous system activity and therefore enhances physical endurance while improvingmood.

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Thus, stated the advertiser, 5-HourEnergy® increases ATP production, energy availability and daily energy expenditureand by so doing, it gives the body"energy to spare," in the vernacular, and that addedenergyis akin to the feelings of sustained energy experienced in youth. Theseenergy increases are measurableand sustainable from 30 minutesto several hours. Citing the clinical trial, the advertiser stated that the feelings of increased energy one wouldanticipate based on the peer-reviewedliterature for the ingredients in fact occur in consumers across a wide range of age groupsand health states and further, that the clinical trial confirmsthe existenceof such feelings for hours, including as long as 4.9 hours, after ingestion of the product. Thus, stated Living Essentials, the claim "hours of energy now"is corroborated based on the rapid increase in energy and the long duration of effects documented the 5-HourEnergy® in clinical trial. Living Essentials asserted that additional benefits comefrom concurrent consumption of taurine, caffeine, and D-glucuronolactone, including increased alertness, rapid reaction, improvedfocus, improvedconcentration, and improvedshort-term memory,as explained by Dr. Glade. Theadvertiser noted that of these physiological reactions, Living Essentials has limited its claims to focus and alertness, both of which,accordingto Dr. Glade,are well-substantiatedeffects that are not controversialin the scientific literature. Again, citing Dr. Glade'sreport, the advertiser explained that concurrent ingestion of taurine, caffeine and D-glucuronolactone increases energy and increases aerobic and anaerobic cycling endurancewithin 30 minutes of ingesting the product. Moreover,stated Living Essentials, taurine ingestion increases wh01e-body, skeletal muscleand heart muscle powerand endurance. As previously explained, Dr. Glade finds additional wellsupported evidence for the role of the B-vitaminsand VitaminC, supporting metabolic energy production and ATP regeneration. Additionally, the advertiser stated that the generally accepted scientific evidencereveals that the N-acetyl-L-tyrosinein the product also enhances physical endurance. Accordingly, concluded the advertiser, the combined physiological effects of these substances on the bodyyields "better workouts" (i.e., ones replete with moreenergy, increased aerobic and anaerobic cycling endurancewithin 30 minutes of product ingestion, and whole-body,skeletal muscle, and heart muscle power and endurance). The increases in energy, aerobic and anaerobic cycling, and endurance are forces that necessarily diminish fatigue normallyassociated with exercise and therefore, Living Essentials maintainedthat the claim, "experience better workoutsand reduce fatigue" is well corroborated. Living Essentials explained that the quantitative amount caffeine ingested per serving of of the 5-HourEnergy®, comparable that of a cup of the leading premium is to coffee, an amount typically associated with "the jitters." Theadvertiser offered that caffeine not intoxication begins to occur in certain healthy individuals whenapproximately600 mgor moreof caffeine is in~ested in one sitting and is characterized by, among other symptoms, jitters, l By keepingits daily serving of the product well belowthe 600 mg the
i See the Institute of MedicineFood and Nutrition Board Committee Military Nutrition Research, on Caffeine for the Sustainment of Mental Task Performance Foundationsfor Military Operations (2001)

(concluding singledoses caffeine that of containing to 600mg caffeine safe anddonot produce up of are neuromuscular manifestations ("jitters"))

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level, Living Essentials ensures that its productis belowa point at whichthose neuromuscular manifestations occur and, so, can claim "no jitters." Living Essentials stated that competingproducts that contain sugars can produce fluctuations in blood sugar levels that, whencompensated by the body'sinsulin, yield for a "crash" effect, but because 5-HourEnergy® contains no sugars, it mayclaim the absenceof a "crash" effect. Theproposition that niacin, vitaminB6, vitaminB 12, and folic acid, at the dose levels delivered in one serving of 5-HourEnergy® provide for "energy" production in the body is well-acceptedand not controversial in the scientific community, Dr. Gladeexplains. as "The daily consumption niacin, vitamin B6, vitamin B 12, and folate supports of the utilization of fatty acids for metabolic energyproduction and ATP regeneration." Thus, the claim of "B-Vitamins energy" is scientifically valid, for substantiated, and well-accepted. Theproposition that the aminoacids N-acetyl-L-tyrosine and L-phenylalanine,at the dose levels delivered in one serving of 5-HourEnergy® provide "for focus and better mood" well-accepted and not controversial in the scientific community, Dr. Glade is as explains: "enhancedsympathetic nervous system activity secondary to the consumptionof N-acetyl-L-tyrosine and L-phenylalanineenhances cognitive functions and improves mood." Theclaims concerningrapid physiologicaleffects, "feel it fast" and "feel it in minutes" as well as the claims for sustained physiologicaleffects, "lasts for hours," are wellcorroborated. Dr. Glade explains: "The concurrent consumptionof taurine, caffeine, and D-glucuronolactone increases aerobic and anaerobiccycling endurance,alertness, the ability to react quickly, the ability to focus, concentration, and short-term memory within 30 minutes of consumption." In further support of its performance "no crash" claims, the advertiser submitteda and randomized,3-arm comparative, controlled, double-blinded, independent study comparing 5-Hour Energy with competing energy drinks, Red Bull and Monster. The study was conducted by Dr. James Blum,Assistant Professor of Medicine, University of NewEngland Medical School, Departmentof Epidemiologyand Biostatistics Adjunct Faculty, University of Maine.Theadvertiser described the screening process, based upon Institutional-Review Boardapprovedentrance criteria and underwent placebo testing a prior to testing each of the different energybeverages. Thetesting schedule was randomized meaningthat each subject took the different beverages in random sequences. All testing wasdone on a day-longbasis requiring each subject to appear in the morning and afternoon.

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Thebaseline lab data of the participants included a completemetabolicprofile, blood pressures, and pulse, all fell within normalrange. Thedoctors conductingthe testing concludedthat the test population had fewoutliers with respect to their baseline data and most, if not all, of their behavioraltendenciesfell within normalranges. Theadvertiser arguedthat the results of this study support its performance claims, as well as its claims regarding no "crash." Thestudy, stated the advertiser, concludedthat for the primary endpoints, 5-HourEnergy outperformed the other two beverages, Monster and Red Bull. Further, stated the advertiser, the 5-HourEnergy® clinical trial corroboratesthat the feelings of increased energyoccur rapidly and last for hours. That responseis unremarkable from a scientific perspective, because, as Dr. Gladeexplains, it is derived from the well-known non-controversial effects of concurrent ingestion of taurine, and caffeine, and D-glucuronolactone along with daily consumption vitamin C, niacin, of vitamin B6, vitamin B 12, and folic acid. LivingEssentials stated that the claim that the producthas "zero sugar, zero net carbs, zero herbal stimulants" is factual. Thereare no sugars in the productand no herbs and a single serving of the product yields no morethan 6 calories, comparable the caloric to intake from ingesting an 8 inch stalk of celery. Noobjectively measurableor cognizable quantity of those calories is attributable to carbohydrates. The advertiser engageda team of scientists from Nerac, Inc., formerly the New England ResearchApplicationCenter, a scientific research organization originally formedas a collaboration betweenthe University of Connecticut and the National Aeronautics & SpaceAdministration,privatized in 1985, to evaluate, independently,the scientific evidence concerning the effects of the nutrients in 5-HourEnergy®. advertiser The submittedthe Neracreport in support. Theadvertiser maintainedthat this is a peerreviewedassessment that supports the independently derived conclusions of Dr. Glade concerningall substantive effects reviewed.Theadvertiser asserted that this report confirmsand corroborates the findings of Dr. Gladewhich, in turn, are consistent with the results of the clinical trial on the 5-HourEnergy®. Thus, concludedthe advertiser, three independentsources corroborate each other and provide substantial proof that the claims in issue are well-substantiated and generally accepted in the scientific community. AddressingNAD's concerns that the advertising implies that while other energy drinks have too much caffeine, 5-HourEnergyhas little or none, the advertiser arguedthat the comparisondoes not dependon the caffeine in the drinks but upon the combinationof sugar and caffeine. Theadvertiser stressed that the crash effect occurs becauseof changes in blood sugar levels and since 5-HourEnergycontains no sugar, it will not producethe swings in blood sugar levels. Theadvertiser stated that RedBull contains between27 and 39 grams of sugar and Monstercontains between23 and 27 grams of sugar.

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Regardingthe non-disclosure of the fact that there is caffeine in 5-HourEnergyin some of the advertising, the advertiser stated that caffeine is listed on the nutrition facts panel for the product and the label alerts the consumer the presenceof caffeine with an to express warning stating, "CAUTION: Contains about as muchcaffeine as a cup of coffee. Limit caffeine products to avoid nervousness,sleeplessness, and occasional rapid heartbeat." The advertiser addedthat energy drink consumers in the market for a are caffeinated beverage. As to the claims that 5-HourEnergywill not cause "jitters," Living Essentials maintained that the amountof caffeine in 5-HourEnergyis belowthe amountthat would causetense and jittery reactions. In summary, advertiser maintained that its claims madefor 5-HourEnergy® the are substantiated by competentand reliable scientific evidenceand by the opinion of independent scientist experts in the field. Decision: 5-Hour Energy® an energy drink designed to provide energy and enhance is concentration. Energydrinks like 5-HourEnergy® include key ingredients, caffeine and taurine, and while not included in 5-HourEnergy, competingenergy drinks contain sugar. 5-Hour Energy®,as well as competingenergy drinks Red Bull®, and Rock Star® also contain B-vitamins that support metabolic energy production and ATP regeneration. Theadvertising in question included a series of print advertisements, webadvertising and television spots. Several of the advertisementsincluded the headline: "Hours of Energy, No Crash Later" The theme/message many the print advertisements is that "energy drinks typically of of contain large amountsof sugar and caffeine," whichcan "makeyou feel jittery then let you downwith a crash." The advertisements then distinguish 5-Hour Energy, "5-Hour Energyhas a better approach- hours of energywith no jitters or crash." Some the advertisements then state that 5-HourEnergycontains "zero sugar and only of as much caffeine as a cup of coffee so you won't experience the spike and crash that comeswith typical energy drinks." Different versions of the advertisements makethe same"energy now, no crash later" claims but makeno mention that 5-Hour Energy contains any caffeine. The advertising also included the following "energy" claims: "When were a kid, you felt like you had energy to spare. Nowyou can get that you feeling back with 5-Hour Energy®." "Just one quick drink and you'll get hours of energy for work, play and everything in between."

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"It's a great wayto stay focused and alert on the job, experiencebetter workouts and reduce fatigue." "B- Vitamins for energy." "Aminoacids for focus and better mood." "Enzymes help you feel it fast." to "Zero sugar, zero net carbs, zero herbal stimulants." "Drinkit in seconds. Feel it in minutes. Last for hours." In support of its performance "no crash" claims, the advertiser submitted a and randomized,3-arm comparative, controlled, double-blinded, independent study comparing 5-Hour Energy with competing energy drinks, Red Bull and Monster. NAD noted that the study used an approved,standardized screening process. Baseline lab data of the participants wastaken and included a completemetabolicprofile, blood pressures, and pulse, all of whichfell within normalrange. The study concludedthat 5-HourEnergyhad the longest period of increased activity of 4.92 hours, at a 95% confidence level. In comparison,RedBull had a period of increased activity of 4.39 hours, while Monster a period of increased activity of 4.34 hours. had Theresults also indicated that moreindividuals taking 5-HourEnergyreported longer intervals of energy, as compared the other products. Specifically, close to 60% the to of subjects experienced 5 or more hours of energy from 5-HourEnergyversus 30%for Monsterand 20% RedBull. In addition, the results indicated that 94% test subjects for of had 4.5 or more hours of energy from 5-Hour versus 52%for Monster and 67%for Red Bull. Lastly, whenasked which beverage had the highest and longest effect, nearly 70% of the participants selected 5-HourEnergy. Thestudy also assessed the "crash" effect experiencedby the participants. Therange of crash was measured from the peak (highest energy) until the point in time whenthe individuals felt that they had reached the low point of the day (the "crash"). Themean crash time range for 5-HourEnergywas 2.43 hours, as comparedto 1.36 hours for Red Bull and 1.43 hours for Monster. Theresults found that nearly 80%(32/41) of those taking RedBull and 75%(29/40) of those taking Monsterreported a moderately severe crash that left themextremelytired and in need of rest, another drink or someother action, while only 24%(10/42) of those taking 5-HourEnergyhad similar reactions. The doctors concludedthat 5-HourEnergyhad a gentler let down participants did not go and belowtheir baseline, whereasthe other drinks exhibited a crash that brought the energy of the subjects belowtheir morningenergylevel.

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Thestudy also concludedthat the actual peak levels achieved by each drink were comparable no statistical differences were found. In addition, there were several and categories that did not showany differences betweenthe drinks including cognitive testing, metabolicrates, and exercise parameters.Finally the study concludedthat for the primary endpoints, 5-Hour Energyoutperformed the other two beverages, Monsterand Red Bull. In addition to the clinical test, the advertiser submitteda plethora of studies on the additional ingredients in 5-HourEnergyand their relation to providingenergy. Thereis extensive research on the aminoacid Taurine. Taurine is the most abundantfree aminoacid in heart and skeletal muscle. There are many studies on animals (rats) whichTaurine has been shownto improvesexercise performance, protect the heart from ischemicdamage,prevent hypertensionin rats fed a high fructose diet & rats treated with alcohol. In addition, Taurine has been shownto be a potent neuroprotectant, protecting against glutamateexcitotoxicity, cerebral ischemia, oxidative stress, and the buildup of toxins. Accordingly, there is someevidence that Taurine mayhelp provide energy and replenish depleted Taurine when orally ingested as part of an energydrink.

Performance Claims Theadvertising included the following "energy" performanceclaims: "Whenyou were a kid, you felt like you had energy to spare. Now can get that you feeling back with 5-Hour Energy®." "Just one quick drink and you'll get hours of energyfor work, play and everything in between. "' "It's a great wayto stay focused and alert on the job, experiencebetter workouts and reduce fatigue." "Drinkit in seconds. Feel it in minutes. Last for hours." NAD found that the advertiser's clinical testing providedamplesupport for these performanceclaims. The study found that 5-Hourenergy provided an average of nearly 5 hours of energy. Accordingly,claims that 5-HourEnergy"lasts for hours" and provides "hours of energy"are supported. Theclinical study, as well as the existing evidenceon caffeine, also supportsclaims that youwill "feel it in minutes."

Implication that 5-HourEnergycontains little

or no Caffeine

However,NAD concerned that the comparisonsto other "energy drinks" in the was advertising mayconveyunsupported messages. Specifically, the 5-HourEnergy

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advertising states, "Why energy drinks makeyou crash?" and then goes on to answer do the question, "because energy drinks have large amountsof sugar and caffeine." Some of the advertising further claims that 5-HourEnergyhas "no sugar" and about 1 coffee cup equivalent of caffeine, while other advertising makesno mentionof the caffeine included in 5-Hour Energy. NAD particularly concernedabout the advertisements that discuss the benefits of 5was HourEnergyand makeno mention of the fact that 5-HourEnergycontains caffeine. These sameadvertisements makeclaims such as "sail through your day without feeling tense, jittery, or crashing," further implying, in NAD's view, that the product will yield different results than those competing products containing caffeine. NAD found that one reasonable takeawayfrom all of this advertising, is that other energy drinks have too muchsugar AND caffeine and 5-HourEnergyhas little, or even no sugar and caffeine. Clearly this is not true. While5-HourEnergy no sugar, it does, in fact, has contain a significant amountof caffeine, whencompared Starbucks, is approximately to one cup of coffee. In contrast, NAD noted that one of the competitive products, RedBull, has approximately80 mgof caffeine, substantially less than the amount contained in 5Hour Energy. In addition, someof the advertising also included the claim, "Zero sugar, zero net carbs, zero herbal stimulants." NAD found that consumerscould reasonably interpret this claim to meanthat this claim further implies that there is no caffeine in the product. While caffeine is not an herbal stimulant per se, somecaffeine sources, such as guaranaand the caffeine foundin tea are herbal. Therefore, NAD foundthat advertising that discusses that other products have "too much sugar and caffeine" while failing to mentionthat 5HourEnergyhas caffeine, and further states that 5-HourEnergyhas "zero herbal stimulants," conveysthe inaccurate message that there is no caffeine in 5-HourEnergy. Since caffeine is a powerful, commonly stimulant, NAD used found that it is important to disclose the presenceof caffeine in a productsuch as this, particularly one claimingto provide "hours of energy." NAD, therefore, recommended the advertiser modifyits advertising to avoid that conveyingthe inaccurate messagethat 5-HourEnergycontains little or no caffeine. As to the advertisements that makeno mentionof the fact that 5-HourEnergycontains caffeine, NAD suggested that any advertising, makingcomparisonsto other competing energydrinks that contain caffeine, disclose the fact that 5-HourEnergycontains caffeine.

Disclosure of Amount Caffeine contained in 5-HourEnergy of

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Theadvertiser represented that 5-HourEnergycontains about as muchcaffeine as a cup of premium coffee. Theadvertising states that 5-HourEnergycontains the caffeine equivalent of "one cup of coffee," while the label states "about one cup," neither actually disclosing the exact amountcontained in the product. The FDA deemsone cup of coffee to contain approximately 100 mgof caffeine, and therefore, under FDA definition, 5-Hour Energywouldcontain morethan the amountof caffeine in "one cup of coffee." Theadvertiser arguedthat the FDA definition is outdated and not relevant here, since nearly any "cup of coffee," such as one frompopular coffee specialty shops like Starbucks or Dtmkin'Donuts, contains approximatelytwice the amountof caffeine. Theadvertiser maintainedthat in stating that 5-HourEnergyhas "about one cup," it is comparing to the commonly it available cups of coffee, like Starbucks. NAD concludedthat, as long as the advertising is clear, and discloses that 5-HourEnergy does, in fact, contain caffeine, the advertiser can makethe "one-cupof coffee" comparison. NAD reasoned that despite the FDA definition of one cup of coffee equaling approximately100mg caffeine, consumersare just as likely to understand one cup of of coffee to be the amount caffeine foundin the currently popular coffees on the market, of such as Starbucks and Dunkin'Donuts.Therefore, as long as the advertising clearly discloses that 5-HourEnergycontains caffeine, the advertiser can claim that its product contains "the amountof caffeine equivalent to one cup of coffee."

Claimsthat there is no Jitter Effect with 5-HourEnergy Theadvertiser maintainedthat the level of caffeine in 5-HourEnergyis belowthat which wouldcause tense and jittery reactions. Theadvertiser stated that caffeine intoxication begins to occur in certain healthy individuals whenapproximately600 mgor moreof caffeine is ingested in one sitting and is characterized by, among other symptoms, the jitters. Living Essentials cited the Institute of MedicineFoodand Nutrition Board Committee Military Nutrition Research, Caffeine for the Sustainmentof Mental Task on Performance Foundationsfor Military Operations (2001), which concluded that single doses of caffeine containing up to 600 mgof caffeine are safe and do not produce neuromuscular manifestations ("jitters"). Bykeeping its daily serving of the product at well belowthe 600 mglevel, Living Essentials maintainedthat its product is well belowthe point at whichthose neuromuscular manifestations occur and, so, can claim "no jitters." Theadvertiser's clinical studydid not assess "jitters," i.e., whether participants felt jittery from5-HourEnergy.Theadvertiser is basing its no jitters claim simplyon the fact that there is significantly less than 600 mgof caffeine in 5-HourEnergy.

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NAD concerned that because 5-Hour Energy contains a significant amountof was caffeine, and since consumers associate "jitters" with caffeine, consumers mightinterpret the claims that there is no jitter effect to mean that there is no caffeine. NAD noted, however,that the amount caffeine in 5-HourEnergy,while significant, is within of reasonable amounts,and comparableto the amountcontained in a strong cup of coffee. NAD reasoned that as long as the presence of caffeine contained in 5-HourEnergyis disclosed in the advertising, consumers on notice that the product contains caffeine, are and the claim that there are no jitters is adequately explained. Accordingly,NAD recommended in advertising making "no jitters" claim, the advertiser clearly that a disclose the presence of caffeine in 5-HourEnergy, thereby providing a context for the claimthat there are no "jitters." Claims that there is No Crashing with 5-HourEnergy Theadvertiser explainedthat it is the combination sugar and caffeine in the competing of energy drink products that causes the "crash" effect, and since 5-HourEnergydoes not contain any sugar, it does not cause a "crash" effect. LivingEssentials stated that the crash effect occurs because of changesin blood sugar levels. Competing energy drinks such as RedBull and Monster, stated the advertiser, contain between27 and 39 gramsof sugar and 23 and 27 gramsof sugar, respectively. In support of its claims that 5-Hottr Energyproducesless, or no crash as compared to other competitiveenergydrinks, the advertiser pointed to the clinical study, which assessed the crash effect experienced from 5-HourEnergy as comparedto Monsterand Red Bull. In the study, the range of crash wasmeasured from the peak (highest energy) until the point in time whenthe individuals felt that they had reached the low point of the day (the "crash"). The meancrash time range for 5-HourEnergywas 2.43 hours, as comparedto 1.36 hours for Red Bull and 1.43 hours for Monster.The results found that nearly 80% (32/41) of those taking RedBull and 75% (29/40) of those taking Monsterreported moderatelysevere crash that left themextremelytired and in needof rest, another drink or someother action, while only 24%(10/42) of those taking 5-HourEnergyhad similar reactions. NAD foundthat this study is sufficient to support a clearly qualified claim that 5-Hour Energyresults in less of a crash effect than RedBull and Monster. NAD, however,noted that this study did not support the advertiser's unqualified claims that 5-HourEnergy results in "no" crash effect. Accordingly, NAD recommended the advertiser that discontinue those claims. Conclusion: Overall, NAD foundthat the advertiser's clinical testing, together with its supplemental evidence, provided a reasonable basis for its energy performance claims for 5-Hour 11

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Energy. Similarly, this study providedsupport for the advertiser's claim that consumers will experience less of a crash effect with 5-HourEnergythan with competingenergy drinks Monsterand Red Bull. NAD, however, found that some of advertising reasonably implies that 5-Hour Energy does not contain caffeine, and NAD recommended the advertiser modifythese that advertisements to clearly disclose the presence of caffeine in 5-HourEnergy. NAD found that as long as the presence of caffeine contained in 5-HourEnergyis disclosed, the advertiser's claimthat "there is no jitter effect" is not likely to confuseconsumers. Advertiser's Statement:Living Essentials supports NAD's advertising review process and has reviewed in detail NAD's decision on its product 5-Hour Energy®.NAD finds Living Essentials' energy performanceclaims substantiated. NAD seeks, however, to ensure that Living Essentials' advertising consistently discloses the presence of caffeine in 5-HourEnergy® that Living Essentials' claim of no crash effect is qualified. and Living Essentials intends to modifyits advertising to accommodate NAD's concerns.

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