PORTLAND, Ore. (Legal Newsline) – An energy drink company is fighting an Oregon consumer’s allegations that the company falsely advertised how much liquid was in a can of its beverage.

Rockstar Inc. filed a motion to dismiss J Podawiltz’s amended complaint in the U.S. District Court in the District of Oregon, Portland Division on May 15.

Podawiltz filed a class action lawsuit that claimed Rockstar violated the Unlawful Trade Practices Act (UPTA) of Oregon and that Rockstar “misrepresented” the amount of liquid a can of its Rockstar Roasted product, which allegedly caused a monetary loss for Podawiltz.

Rockstar admits in the motion that a limited amount of its cans were misprinted, saying that the can had 15 fluid ounces [473 milliliters] when the can actually contained 444 milliliters. The label was revised in January.

It doesn’t, however, believe Podawiltz presented enough evidence to support a case against it.

According to the motion, Podawiltz claimed Rockstar violated Section 646.608(1)(e) of the UTPA which says unlawful practices occur when ““[a] person engages in an unlawful practice if in the course of the person’s business . . . the person . . . [r]epresents that real estate, goods or services have . . . characteristics . . . quantities or qualities that the real estate, goods or services do not have."

Rockstar disputes this claim in the motion stating, “he received 15 ounces of beverage in a can correctly labeled as containing 15 ounces, any claimed omission is equal to the amount of the product received."

The motion also said that Rockstar did not, “change the pricing of its product due to the alleged misrepresentation.”

Rockstar said in the motion the case should be dismissed because Podawiltz does not have the right to sue under the federal Food, Drug and Cosmetic Act or the Fair Packaging and Labeling Act which Congress said preempts similar state laws such as the UTPA. Only the Food and Drug Administration, according to the motion, is allowed to sue under those acts.

Rockstar is represented by Stoll Stoll Berne Lokting & Shlachter of Portland.

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