The Maharashtra Food and Drug Administration (MFDA) has reportedly seized more than 1 million cans of Red Bull®, an energy drink containing 250-300 parts per million (ppm) of caffeine, on the ground that the product exceeds the 145 ppm limit for carbonated beverages. according to a press report, no separate standards for caffeine in energy drinks exist, but the Food Safety and Standard Act 2006 states that all drinks containing caffeine should follow the carbonated beverage rules. The nation’s Food Safety and Standards Authority is developing a new energy drink category that could allow higher caffeine content. The action is apparently the second in India; Tamil Nadu has also evidently targeted the beverage for exceeding caffeine limits. MFDA Commissioner Mahesh Zagade reportedly said, “Caffeine is addictive and it has a long-term impact. Youngsters today are increasingly consuming alcohol with Red Bull. Parents should be keeping a check on what their…
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A federal court in California has refused to dismiss most of the putative class claims filed by a consumer against a company that made an alcoholic beverage containing high levels of caffeine, finding that a federal alcohol labeling law did not preempt state-law claims based on labeling or advertising and that the allegations of economic injury are sufficient to establish standing under California’s Unfair Competition Law (UCL). Cuevas v. United Brands Co., Inc., No. 11-991 (S.D. Cal., order entered March 8, 2012). The defendant manufactured and sold JOOSE®, a flavored beverage with about 125 mg caffeine and 9.9 to 12 percent alcohol, from 2007 until it voluntarily removed the product from the market in December 2010 after receiving a warning letter from the Food and Drug Administration (FDA). The plaintiff allegedly purchased the product on two occasions in April and August 2010 and subsequently filed suit alleging that the defendant violated…
The Food and Drug Administration issued a warning letter to BreathableFoods, Inc., which makes AeroShot Energy®, an “inhalable”caffeine product, on March 5, 2012. According to the agency, the AeroShot product is misbranded because it is labeled as intended for inhalation while the company’s Website indicates that the product is intended for ingestion. “Your labeling is false and misleading because your product cannot be intended for both inhalation and ingestion,” states the letter. FDA also notes that the product label fails to include a domestic address or phone number through which reports of serious adverse events associated with the product may be received. The letter further informs the company that FDA has “safety questions about the possible effects of your product.” FDA expresses concerns regarding “contradictory messages” about use of the product “in combination with alcohol. On the one hand, your website includes a posting of a news interview in which…
According to Senator Charles Schumer (D-N.Y.), the Food and Drug Administration (FDA) has agreed to investigate the safety and legality of AeroShot®, which allows consumers to inhale a powder delivering 100 mg of caffeine to the body. Created by a Harvard professor and a company led by Harvard graduate Tom Hadfield, the product was apparently launched in January 2012 in New York and Boston markets. Its sale is not limited by any age restrictions nor has the product been reviewed by any agency. Still, Hadfield has reportedly indicated that the FDA review “will conclude that AeroShot is a safe, effective product that complies with FDA regulations.” Schumer called for the FDA review in a December 2011 letter raising concerns about the use of caffeine by children and adolescents. He also noted that a company marketing video “flashes through a variety of settings, including a dance party, a club scene, and…
A federal court in Illinois has determined that insurers providing coverage to Phusion Projects, Inc., which makes Four Loko, an alcoholic beverage with large amounts of caffeine and other stimulants, do not have a duty to defend the company in lawsuits alleging injury from intoxication. Netherlands Ins. Co. v. Phusion Projects, Inc., No. 11-1253 (N.D. Ill., decided January 17, 2012). The insurers filed a declaratory judgment action against Phusion claiming that they had no duty to defend or indemnify it in five lawsuits because of an unambiguous exclusion from coverage in the applicable insurance policies. Phusion brought a counterclaim, arguing that they did have a duty to defend it. According to the court, the exclusion applies to any case alleging injury arising from intoxication. Because four of the five cases filed against Phusion involve injury attributable to intoxication, the court found that the insurers have no duty to defend the beverage…
A federal court in Illinois has granted the motion to dismiss filed by Phusion Projects, Inc., which sells Four Loko®, a caffeinated alcoholic beverage, in a case brought by one of the company’s insurers seeking a declaration that it owed no duty to defend or indemnify the beverage maker in third-party lawsuits claiming injury, death or economic harm. Selective Ins. Co. of S.C. v. Phusion Projects, Inc., No. 11-3378 (N.D. Ill., decided November 15, 2011). According to the court, the case presented no case or controversy because Phusion has withdrawn its tender of defense and request for indemnification from this insurer. Because Phusion refused to withdraw its request “with prejudice and for all purposes” and continued to provide the insurer with notice of new claims “in compliance with the policy notice provision,” the insurer argued that the beverage company was reserving its right to reassert a demand for coverage in…
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…
Health Canada recently announced new measures that would reclassify energy drinks as food instead of a natural health product (NHP), thus requiring each can to bear a nutritional facts table. According to an October 6, 2011, press release, the new rules would also direct energy drink manufacturers to (i) limit caffeine content to 180 milligrams per single serving; (ii) indicate caffeine amounts on product labels and identify groups, such as children, “for whom high levels of caffeine are not recommended”; (iii) declare ingredients, nutrition and allergens; (iv) ensure that “types and levels of vitamins and minerals are within safe levels”; and (v) warn consumers not to mix the product with alcohol. The proposed approach would bring energy drinks under the purview of the Canadian Food Inspection Agency, while compelling producers to report any consumer complaints to Health Canada as well as submit information about consumption and sales. The agency intends…
The Federal Trade Commission (FTC) has entered a 20-year consent order with Phusion Projects, LLC, the maker of Four Loko®, an alcoholic beverage that has generated significant controversy for its “super-size” container and previous inclusion of caffeine, which some allege has led to binge-drinking and adverse health effects. In re: Phusion Projects, LLC, No. 112-3084 (FTC). According to an FTC news release, “The marketers of Four Loko have agreed to re-label and repackage the supersized, high-alcohol, fruit-flavored, carbonated malt beverage, to resolve Federal Trade Commission charges of deceptive advertising.” FTC alleged that the company’s advertisements, packaging and promotional material misrepresented the amount of alcohol in its products and, in fact, implied that a 23.5-ounce can of the beverage contains the alcohol equivalent of just one or two regular 12-ounce beers. The product actually contains alcohol equivalent to 4.7 regular beers, according to FTC. “As a result, consuming a single can…
California Governor Jerry Brown (D) has signed a bill (S.B. 39) prohibiting the importation, production and sale of caffeinated beer beverages in retail establishments throughout the state. Effective January 1, 2012, the legislation provides, in part, “Beer to which caffeine has been directly added as a separate ingredient shall not be imported into this state, produced, manufactured, or distributed within this state, or sold by a licensed retailer within this state.” The prohibition does not apply to beer brewed with coffee or other naturally caffeinated ingredients. Calling caffeinated beer beverages “a threat to public health,” bill sponsor Senator Alex Padilla (D-Pacoima) said the measure was adopted in response to several incidents involving underage drinkers hospitalized for alcohol overdoses after consuming caffeinated beer, which is typically packaged in large containers and has sweet, fruity flavors. “The added caffeine masks the effects of the high alcohol content, which can lead to binge…
