In another legal victory for Monster Energy, a California court issued a permanent injunction Wednesday against Bang Energy maker Vital Pharmaceuticals (VPX), requiring the company to pull all products featuring the word “creatine” from store shelves and to cease selling Bang products featuring the term within 60 days.
As well, VPX must add a corrective statement to all websites and social media accounts related to the brand informing consumers about the jury’s verdict and cease all advertising claims that Bang includes either creatine or Super Creatine for a period of 30 days.
The ruling stems from Monster’s $293 million false advertising lawsuit against VPX, in which a jury determined in September that VPX had misled consumers and harmed Monster’s business by marketing Bang Energy drinks as containing “Super Creatine.” The nine-person jury concluded that Super Creatine, an allegedly functional ingredient conceived by Bang founder and former CEO Jack Owoc, was ineffectual and did not increase creatine levels in the body as touted by the company.
Although VPX announced in November that it would remove “Super Creatine” from its cans following the trial, the court order called the company’s efforts “insufficient,” and cited claims by the company that it had manufactured products featuring the term as recently as March 2023 and intended to sell the remaining inventory through the end of the calendar year.
“Defendants argue that VPX must continue to sell Super Creatine labeled cans because the destruction of its existing cans ‘would cause millions of dollars in losses, severely disrupt VPX’s supply lines and business relationships, and leave VPX unable to fill existing customer orders or meet consumer demands,’” Judge Jesus G. Bernal wrote in the order. “But Defendants have brought on themselves these unfortunate consequences through their false advertising.”
The order also pointed to Instagram reels posted by Owoc in October and various social media posts from the company in February that displayed Bang cans with the “Super Creatine” claim on the front of the label.
“Defendants assert that ‘[i]t is impossible for VPX to review and eliminate all of the hundreds of thousands archived and historical social media posts that may include an image of the legacy [BANG] can or logo,” Bernal wrote. “But VPX does not explain why this is impossible, especially for its own social media accounts.”
VPX filed for Chapter 11 bankruptcy in October 2022, weeks after being ordered to pay $293 million in damages to Monster. Last month, VPX announced that Owoc had been removed from all his positions within the company including CEO and Chief Science Officer, and as a member of the board of directors, where he had served as chairman.
Since his exit from the company, Owoc has represented himself in the case.
In a statement to Law360, Monster Energy attorney John C. Hueston called the injunction “another important victory for our client Monster in an effort to prevent further harm from Bang’s and its founder’s campaign of false statements that we brought to light during our hard fought trial.”
In March, Monster asked the court for an additional $167 million in damages, including attorneys fees and lost profits for the period during the trial.