Responding to a request from a coalition of state attorneys general, the Food and Drug Administration (FDA) has called on the makers of alcoholic energy drinks to provide information and data showing their use of caffeine in alcoholic beverages is permissible under the law. The letter, sent to nearly 30 companies, explains what the law requires in terms of food additives: the additives must meet generally recognized as safe (GRAS) standards or be given pre-market approval by the agency. According to FDA, caffeine is GRAS only when used in cola-type beverages.

The letters were issued on November 13, 2009, and the companies were given 30 days to provide the requested information. In late September, the co-chairs of the National Association of Attorneys General Youth Access to Alcohol Committee called for the agency to pull the products from the market, contending that “the combination of caffeine and alcohol in AEDs [alcoholic energy drinks] has not been demonstrated to be safe, but rather poses a serious public health risk.”

Attached to their letter was a statement by scientists, academics and those who deal with alcohol abuse detailing the scientific evidence which purportedly shows that more than one in four college students consume such beverages, and that their consumption “is associated with significantly increased heavy episodic drinking and episodes of weekly drunkenness.” Among the potential risks cited are “increased risk of serious injury to oneself and to others, as the result of driving while intoxicated, sexual assault, and other dangerous behaviors.”

Excluded from the list of companies that received the FDA letters were Anheuser-Busch InBev NV. and MillerCoors LLC, which agreed in 2008 to stop manufacturing and selling all of their alcoholic energy drinks to settle claims brought by the attorneys general and the San Francisco City Attorney. Several alcohol watchdog groups reportedly praised the FDA’s action; an agency spokesperson acknowledged the serious concerns that have been expressed about the beverages, but said that the agency “has not reached a conclusion” about their safety. According to a news source, spokespersons for Constellation Brands Inc. and Diageo North American indicated that they had already ceased producing the beverages. See FDA News Release, November 13, 2009; The Wall Street Journal, November 14, 2009; Los Angeles Times, November 15, 2009.

About The Author


For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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