Overview
Cohen Milstein represents the State of Arizona in a consumer protection lawsuit against Botanic Tonics, LLC and its founder, Jerry Ross, arising from the marketing and sale of feel free, a two-ounce beverage containing the psychoactive substances kratom and kava. According to the Complaint, feel free can produce opioid-like effects and carries risks of dependence, addiction, and withdrawal. The State’s Complaint alleges that Botanic Tonics and Ross concealed or downplayed the significant health risks to consumers.
Defendants sold feel free throughout Arizona in gas stations, convenience stores, other retail outlets, and online, while promoting it as a wellness tonic, energy drink, kava beverage, and alcohol alternative.
Case Background
According to the Complaint, Botanic Tonics, founded by Jerry Ross, has sold millions of bottles of feel free in Arizona. Ross, who served as Botanic Tonics’ CEO from 2020 – 2024 and is now its Chairman, allegedly knew of the product’s health risks from the outset, having personally experimented with kratom for years and experienced adverse effects from heavy consumption, which he described as feeling “toxic.”
Defendants’ knowledge of the drink’s health risks only increased after feel free received and monitored consumer reports describing dependence, severe withdrawal, escalating consumption, financial hardship, rehabilitation, and other adverse consequences. According to the Complaint, Ross, himself, placed his personal telephone number on early feel free packaging and received direct communications from consumers about their experiences with the product. And through online sales, the Defendants allegedly had visibility into purchasing patterns reflecting repeated and, in some instances, extremely heavy consumption.
Rather than adequately alerting consumers to these risks, the Defendants built and expanded the market for feel free by presenting the product to Arizona consumers in ways that obscured its nature and risks. The Complaint identifies five principal categories of unfair and deceptive practices:
- Concealment of Kratom and Its Risks: Defendants marketed feel free as a kava product made with “other ancient plants,” while minimizing or omitting its kratom content and failing to adequately alert consumers to known risks of addiction, dependence, withdrawal, and other serious adverse effects.
- Misleading Wellness and Energy Marketing: Defendants promoted feel free as a safe wellness tonic, energy shot, plant-based supplement, and fitness aid, using packaging, placement, and messaging designed to resemble familiar consumer products while downplaying the product’s risks. This marketing was inconsistent with the risks that feel free presents.
- Targeting Consumers Seeking Sobriety: Defendants marketed feel free as an alternative to alcohol for recovering alcoholics and “sober curious” consumers, suggesting it could support sober lifestyles without alerting consumers to its own risks of dependence, addiction, and withdrawal.
- Misleading Health and Fitness Associations: Through gyms, spas, influencers, and fitness-focused advertising, Defendants associated feel free with health, fitness, and natural living while emphasizing purportedly plant-based qualities allegedly inconsistent with the product’s ingredients and processing.
- Encouraging Escalating Consumption: Even after learning that consumers were reporting dependence and increasing use, Defendants employed sales practices designed to encourage repeated and increased purchases of feel free, including recurring subscriptions, substantial discounts for subscriptions over one-time purchases, and rewards for increased purchases of feel free.
The State contends these practices transformed kratom from a niche product into a mainstream consumer item while concealing material information about the risks. The Complaint alleges that Defendants’ deceptive marketing, omissions, and unfair business practices violated the Arizona Consumer Fraud Act.