New York Assemblyman Nelson Castro (D-86) has proposed an amendment (A09754) to the state’s agriculture and markets law that would require a warning label on all energy drinks. Citing “serious health risks including heart attack, stroke and even heart disease,” the provision calls for product warnings to appear in a black box and in letters “not less than eight point type.” It would also impose civil liability fines of $1,000 per violation.

But unlike a similar proposal in Kentucky that reportedly focuses on caffeine content, the New York law defines an energy drink as containing “a combination of some or all of the following ingredients: sugar, methylkanthines, caffeine, vitamin E, herbs, guarana, açai, taurine, ginseng, maltodextrin, inositol, carnitine, creatine, glucuro-nolactone and ginkgo biloba.” This definition would exclude coffee, according to a January 26, 2010, article in Law360, which noted that the American Beverage Association has questioned the practicality of enforcing such laws. “If you check out our products you’ll find that the vast majority of them have clear advisory statements on their packaging already,” one association spokesperson was quoted as saying. “All of a sudden you’ll have bouncers outside of Starbucks.”

In a related development, Labour MEP Catherine Stihler has called on the European Union (EU) to prohibit the sale of caffeinated alcoholic beverages, citing a recent BBC investigation linking one popular product to more than 5,000 crime reports filed in Strathclyde, Scotland, from 2006 to 2009. The January 18, 2010, BBC article focused on Buckfast tonic wine, which allegedly contains 15 percent alcohol and as much caffeine as eight standard cans of cola. Although the wine comprises only 0.5 percent of the Scottish alcohol market, one police officer told the BBC that, in addition to being mentioned in a number of crime reports, “the Buckfast bottle was used 114 times as a weapon.”

Noting these statistics, Stihler has urged the EU Committee on Internal Market and Consumer Protection to implement a ban on Buckfast and similar beverages. “With it taking only one can of energy drink to rapidly increase the chance of heart attack or stroke, then surely it is high time for a ban on alcoholic caffeinated drinks,” she stated in a January 26 press release issued by the Scottish Labour Party. “The fact is many consumers are unaware of the damage they are doing to their bodies and lack the essential information to make an informed decision about what they purchase.” See The Daily Record, January 17, 2010.

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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