PHOENIX — Attorney General Kris Mayes is suing the maker of what it bills as an energy drink because it fails to disclose some ingredients that she says can cause illness and death.
The product, "feel free,'' marketed at gas stations and convenience stores by Botanic Tonics, contains kratom and kava, the lawsuit filed Wednesday in Maricopa County Superior Court contends. Those are products derived from plants.
Richie Taylor, a spokesman for Mayes, acknowledged that Arizona lawmakers have rejected efforts to tighten restrictions on the sale of kratom, which, at low doses, can act as a stimulant. And there are no restrictions at all on kava, which can produce a mild euphoria.
But Taylor said the failure to disclose the presence of the herbs — and their possible side effects — is a violation of Arizona's Consumer Fraud Act. And he said the Arizona Department of Health Services has documented 146 deaths between 2020 and 2023 from kratom.
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"It's a public health threat,'' he said.
The legal papers do not demand that the product be taken off the market. Instead, Mayes wants Maricopa County Superior Court Judge Adele Ponce to order Botanic Tonics and Jerry Ross, the company's owner, to stop engaging in what she called deceptive, misleading or unfair acts — including omitting the presence of kratom and kava — when the product is sold in Arizona.
She also wants financial compensation for people in Arizona who purchased the product — what she said is known as "gas station heroin'' — and suffered side effects.
There was no immediate response from the company.
The product is one of many that can be found at gas stations and convenience stores, marketed as an energy stimulant.
"But "feel free'' presents serious risks that defendants' marketing concealed or minimized,'' Mayes states in her lawsuit. That includes the failure to disclose what's actually in the product — particularly kratom.
"Defendants marketing describes 'feel free' as a "kava drink'' made with kava and 'other ancient plants,' '' Mayes said.
"Instead of mentioning kratom in its description of the the product, defendants deceptively hide its presence in the reference to 'other ancient plants,' '' she continued. "Describing 'feel free' as a kava drink is akin to describing a gin and tonic simply as tonic.''
What makes that omission important, the attorney general said, is that it fails to warn consumers of what consuming it can do.
"Kratom can produce opioid-like effects and carries risks including dependence, addiction, and withdrawal,'' according to the lawsuit, and also presents health risks, "particularly when consumed in concentrated amounts or in combination with other substances.''
And what's happening here, the attorney general said, is "feel free'' combines these two psychoactive ingredients "in an easy-to-consume, flavored shot marketed for regular use in Arizona.''
Mayes also said that the company has "represented or suggested'' that "feel free'' is safe "and comparable to familiar substances such as sugar or caffeine.'' And she said it also has been promoted as an alternative to alcohol, including to people seeking sobriety, "without adequately disclosing that they were substituting one substance presenting risks of dependence, addiction, and withdrawal for another.''
Then there's the packaging.
Mayes said the small bottles are designed to look like products like 5-Hour Energy, a legal product which uses caffeine as its stimulant, with it being placed next to that product in many stores.
Mayes also claims that none of the effects are a surprise to Ross, the company owner.
"Before bringing 'feel free' to market, defendant Ross consumed the product heavily himself — reaching approximately six bottles a day — and has described experiencing increased euphoria with increased consumption, withdrawal symptoms, and ultimately feeling 'toxic,' '' the lawsuit states.
Mayes also said Ross knew of problems experienced by consumers; at one point early on, he put his personal telephone number on packages.
"Yet rather than adequately disclose these risks, defendants built and expanded the market for "feel free'' by presenting the product to Arizonans in ways that obscured its nature and risks,'' the attorney general said. All of that, Mayes said, violates Arizona consumer fraud laws, regardless of the fact that kratom and kava can be sold legally in Arizona.
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, Bluesky, and Threads at @azcapmedia or email azcapmedia@gmail.com.
