The attorneys general of a number of states have submitted a comment
to the Federal Trade Commission (FTC) taking issue with several aspects
of a proposed settlement agreement with the company that makes the
caffeinated alcoholic beverage Four Loko®. Additional information about the
proposed settlement appears in Issue 412 of this Update.

Attached to the November 16, 2011, letter are numerous Facebook comments
by individuals who apparently “like” various Four Loko® photos, press
announcements and news items. The AGs express their concern that FTC
will allow Phusion “to market as much as 2.5 servings of alcohol (1.5 oz of
ethanol) as if it were one serving and avoid the Order’s requirements for label
disclosure and resealability, and its prohibition against depicting consumption
directly from the can. By condoning the marketing of ‘single serving’
FMBs [flavored malt beverages] with 2.5 servings of alcohol, the Order would
undermine federal guidelines for moderate drinking.” They also request that
FTC define “resealable” and undertake a study after the order is finalized on
“the impact of the label disclosure.”

According to the AGs, if an alcohol product is labeled with a disclosure that
it contains “as much alcohol as [x] regular (12 oz, 5% alc/vol) beers,” given the
current lack of data, it is unknown how such disclosures will “influence the
purchasing and consumption decisions of [Four Loko] consumers.” Quoting
some of the Facebook statements attached to the letter, the AGs note that
these consumers self-report excessive alcohol consumption and “an intent to
consume the product to become intoxicated.” Thirty-four state AGs, the AGs
of Guam and the Northern Mariana Islands, as well as the city attorney of San
Francisco signed the letter.

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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