As readers of the Monitor know, we have seen an increasing amount of scrutiny in recent months surrounding so-called “energy drinks,” particularly in the wake of reports linking consumption of such beverages to multiple deaths. Just last month, a study was released finding that energy drinks may boost blood pressure and lead to an erratic heartbreak, and doctors have written to Food and Drug Administration (FDA) Commissioner Margaret Hamburg saying energy drinks should have no more caffeine than sodas and companies should be required to list caffeine content on the labels. Meanwhile, energy drink manufacturers have consistently and vigorously defended the safety of their products. As more studies are published and the medical community voices its concern over these products, litigation has proliferated and lawmakers are taking notice.
The congressional charge has been led by senators Dick Durbin (D-Ill.), Richard Blumenthal (D-Conn.), and Rep. Ed Markey (D-Mass.), who initially urged the Food and Drug Administration last year to convene an expert panel to discuss the effects of consumers’ caffeine consumption. More recently they have sent letters to energy drink companies (including Monster Beverage Corp., Red Bull North America, and Rockstar Inc.), asking about their marketing strategies and the safety of their products, ultimately telling them to stop marketing their beverages to children.
In February the three lawmakers wrote the leaders of the National Collegiate Athletic Association (NCAA) and the National Federation of State High School Associations (NFHS), asking for information on how the organizations are educating student-athletes about the possible health risks of energy drinks. The letters also inquired as to any marketing restrictions the organizations placed on energy drink manufacturers during athletic events.
The NCAA responded that it has devised several policies to limit access to “energy products” because they pose a health and safety risk to student-athletes. The NCAA’s letter further stated that NCAA Advertising and Sponsorship Standards prohibit energy product manufacturers from sponsoring NCAA championships and certified postseason bowl games. The NFHS, for its part, informed the lawmakers that it has been warning student-athletes of the risk of energy drinks for more than a decade.
The response of these organizations is notable, given the uncertainty surrounding the risks of energy drinks and the fact that they have traditionally maintained an unregulated status (Daniel Fabricant, director of the FDA’s dietary supplement division, acknowledged in an interview in October that energy drinks are not in fact defined by any regulation).
Like many other companies, Monster Beverage – the nation’s largest seller of energy drinks – initially sold its products as dietary supplements, apparently as part of a strategy to convince consumers that they were different from beverages. However, as of March 2013, after a decade of being sold as a dietary supplement, Monster has begun marketing its energy drink as a beverage. While this means the company will no longer be required to comply with federal regulations that apply to dietary supplements, they will now be required to comply with the various rules and regulations that apply to beverages. The company will likely face new reporting mandates as beverage producers, and they will be required to maintain scientific data supporting the safety of any ingredients they use that are not already cleared by the government.
In addition, Monster Beverage’s new cans will disclose caffeine content for the first time. A 16-ounce can of Monster’s most popular energy drinks will contain 140-160 milligrams of caffeine, compared to about 330 milligrams in a 16-ounce Starbucks coffee. This should, at the very least, allow the company to dispute claims that the beverages’ caffeine content is markedly more than in a cup of coffee (indeed, Monster’s most popular drinks appear to contain less than half the caffeine of coffee).
Monster’s marketing move followed a similar regulatory “makeover” by another brand, Rockstar Energy, according to the New York Times. More companies may follow suit, which could lead to more labels on cans and potentially more informed choices by consumers.
At first, most energy drinks were not bound by FDA guidelines because they were sold as dietary supplements rather than as beverages. This meant that while soda can legally have as many as 71 milligrams of caffeine per 12 ounces, caffeine in energy drinks could range from 160-500 milligrams in a serving. This apparent regulatory loophole caused a stir when Monster Beverage, like its competitors, faced the disclosure in October that the FDA had received reports that mentioned energy drinks in connection with deaths and injuries. Of course, the mention of a product in an incident report filed with the FDA does not mean the product played any role in a death or injury, but it can cause serious problems for companies in terms of fending off lawsuits. The new can labels and reporting mandates may help energy drink companies avoid these types of suits in the future.
Despite the new labels and the companies’ obligation to comply with additional reporting requirements, Congress continues to seek increased regulation in this area, whether the drinks are marketed as “supplements” or “beverages.” For his part, Senator Durbin announced in March that he will reintroduce the Dietary Supplement Labeling Act, which he and Blumenthal originally introduced in 2011.
We are sure to see continuous developments in energy drink legislation and litigation in the coming months, and we will be sure to keep you posted. You can read our previous coverage on this issue here and here.