U.S. Rep. Edward Markey (D-Mass.) and Sens. Richard Durbin (D-Ill.) and
Richard Blumenthal (D-Conn.) have issued a joint report presenting the
results of their investigation into the energy drink industry. Titled “What’s all
the Buzz About?,” the report is based on survey responses from 14 energy
drink companies asked to outline their current marketing, labeling and
manufacturing practices. According to the lawmakers, the responses highlight
various inconsistencies in how these companies market and label their
products under current regulations, “leading to consumer confusion and a
lack of transparency.”

In particular, the report alleges that (i) “four out of the 14 companies surveyed
classify and market one or more of its products as dietary supplements,
as opposed to conventional beverages”; (ii) “concentrations of caffeine are
not uniformly represented on the label of the brands evaluated,” with some
concentrations exceeding safety levels set by the Food and Drug Administration
(FDA) for soda; (iii) “energy drink companies make a range of advertising
claims related to the functional benefits of their products that are not generally
evaluated or substantiated by FDA”; and (iv) “energy drinks contain a
myriad of specialty ingredients whose combinations and additive impacts
are not thoroughly evaluated or well understood.” The report also claims that
despite pledges to the contrary, companies frequently target adolescent
consumers with unconventional marketing practices as well as product
design and placement on store shelves.

To address these concerns, the report ultimately urges energy drink manufacturers to label the caffeine content of their products; warn consumers when the caffeine content exceeds 200 parts per million, the amount that FDA generally recognizes as safe; and cease marketing their products to youth younger than age 18. The legislators have also asked companies to submit to FDA “any serious adverse events associated with energy drink use.”

“It’s time for energy drink makers to stop masking their ingredients, stop marketing to kids, and start being more transparent with their products,” said Markey in an April 10, 2013, press release. “It’s time for the FDA to crack down on these drink makers and for the FTC [Federal Trade Commission] to investigate advertising practices of these companies to ensure that kids and parents are not being subjected to deceptive marketing practices.”

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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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