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Law Enforcement Takes Action against Caffeinated Alcoholic Beverages

By Dennis Cuevas, Consumer Protection Counsel

Dennis Cuevas, Project Director and Chief Counsel, Consumer Protection

The Food and Drug Administration (FDA) issued warning letters in November to four companies that manufacture caffeinated alcoholic beverages. These drinks have been the subject of state Attorneys General’s ongoing efforts over at least three years to protect young people from the marketing and use of these harmful products. In fact, 18 Attorneys General and the San Francisco City Attorney petitioned the FDA in September 2009, to take action against caffeinated alcoholic beverages.

Receiving the FDA letters were Charge Beverages Corporation for its Core High Gravity HG Green, Core High Gravity HG Orange, and Lemon Lime Core Spiked; New Century Brewing Company, LLC for its Moonshot; Phusion Projects, LLC (doing business as Drink Four Brewing Co.) for its Four Loko; and United Brands Company Incorporated for Joose and Max.

The letters warned the companies that the FDA considers the caffeine added to their malt alcoholic beverages to be an “unsafe food additive.” A food or beverage that contains an unsafe food additive is considered adulterated and, thus, illegal under the Federal Food, Drug, and Cosmetic Act. “FDA does not find support for the claim that the addition of caffeine to these alcoholic beverages is ‘generally recognized as safe,’ which is the legal standard,” said Joshua M. Sharfstein, M.D., FDA principal deputy commissioner. “To the contrary, there is evidence that the combinations of caffeine and alcohol in these products pose a public health concern.”

Simultaneously, the Federal Trade Commission (FTC) informed the same four firms that marketing their seven products may constitute an unfair or deceptive practice that violates the FTC Act. The FTC letters strongly urged the companies to review the way they are marketing their caffeinated alcohol drinks and to “take swift and appropriate steps to protect consumers.” “Consumers might mistakenly assume that these beverages are safe because they are widely sold,” said David Vladeck, FTC Bureau of Consumer Protection director.

In May 2007, 29 Attorneys General issued a letter to Anheuser-Busch expressing their concern about the company’s promotion and sale of its alcoholic energy drink, Spykes. In the letter, the Attorneys General discuss how combining caffeinated energy drinks with alcohol poses significant health and safety risks.

In September 2008, 27 Attorneys General issued a letter to MillerCoors, after it decided to introduce Sparks Red, an energy drink that contained as much as 8 percent alcohol by volume – a significant increase over the alcohol content found in other alcoholic energy drinks.

In their letters, state Attorneys General point to several studies and research that shows when combined with alcohol, the caffeine and other stimulants in the energy drinks do not improve alcohol’s negative effects on motor coordination skills and cognitive skills, but rather reduce consumers’ subjective perception of alcohol intoxication.

Caffeine's "masking effect" allow drinkers to stay awake longer and consume more alcohol than they would be able to tolerate, thereby reaching poisonous and even lethal, alcohol blood content levels. Media reports of the “blackout in the can” phenomenon illustrate the deaths and hospitalizations of young people with lethal alcohol poisoning. For example, in October, nine students from Central Washington University were hospitalized with excess blood alcohol levels ranging from .12 to .35 after drinking caffeinated alcoholic beverages at an off-campus party. Recently, 23 students from Ramapo College in New Jersey were hospitalized for alcohol intoxication.

Consumption of alcohol and energy drinks by young people is often associated with heavy drinking and more frequent drinking. It also results in a high prevalence of alcohol-related consequences, including being taken advantage of sexually, riding with an intoxicated driver, being physically hurt or injured, or requiring medical treatment.

As a result of the letters and other ongoing efforts initiated by state Attorneys General, MillerCoors Brewing and Anheuser-Busch halted the production of their alcoholic energy drinks.

Despite these successful efforts, smaller drink manufacturers continued to introduce alcoholic energy drinks packaged in larger volume containers (up to 23.5 ounces) and containing a higher percentage of alcohol (up to 12 percent). The recent federal law enforcement efforts are a first step in addressing these smaller manufacturers.

In addition to law enforcement efforts to crack down on caffeinated alcoholic beverages, other actions have been taken to restrict or ban their availability. Four states – Michigan, Oklahoma, Utah, and Washington, have banned caffeinated alcoholic beverages, and seven more – Arkansas, Kansas, Massachusetts, Oregon, Pennsylvania, New Jersey, and North Carolina—are considering banning the product. Distributors and retailers in Connecticut and New York have agreed to voluntarily stop selling caffeinated alcoholic beverages, while Pennsylvania has asked distributors to voluntarily end sales. Montana has reclassified the drink as distilled spirits, reducing their availability and increasing their taxes, while Virginia has required retailers to place caffeinated alcoholic beverages with beer and wine and not with energy drinks.

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