Washington State Attorney General Robert McKenna has issued an October
25, 2010, letter to Food and Drug Administration (FDA) Commissioner
Margaret Hamburg, alleging that a recent incident involving alcoholic energy
drinks (AEDs) sent nine college students to emergency rooms with alcohol
poisoning. According to the letter, “Once at the hospital, medical staff found
the blood-alcohol levels of the impacted students ranged from .123 percent
(legally drunk) to .35 percent—a lethal level of alcohol poisoning… The
investigation concludes that the students—all under 21 years old—combined
AEDs with other kinds of alcohol.”

Citing the October 8 police report, McKenna has claimed that the affected
students were drinking an AED manufactured by Phusion Projects, LLC ,
known as “Four Loko,” which contains 12 percent alcohol and “high doses
of caffeine and sugar.” Moreover, the letter continues, “The frightening
incident… is hardly unique. In fact, AEDs are sweeping college campuses…
Twenty-three students at New Jersey’s Ramapo College were hospitalized in
September after a drinking binge. Some, if not all, had consumed Four Loko.”

McKenna has apparently drawn attention to the incident as part of his
effort to outlaw AEDs. In September 2009, he joined with 18 state attorneys general in urging FDA to review the safety of caffeinated alcoholic beverages.

McKenna has also committed to pursuing a state ban if the agency does
not act soon. “I want to reiterate my belief that AEDs do not comport with
FDA guidelines and present a serious threat to public health and safety,” he
concludes in the letter, which requests an update on FDA’s investigation. See
McKenna News Release, October 25, 2010.

In response to the allegations Phusion Projects has cautioned against blaming one particular product, noting that Four Loko “is mentioned only twice in the 44-page police report,” while “hard liquor, vodka, rum or other alcohol is mentioned at least 19 times; beer is mentioned at least 3 times; and illegal drugs or roofies are mentioned at least 14 times.” As one company spokesperson was quoted as saying, “Alcohol misuse and abuse and under-age drinking are issues the industry faces and all of us would like to address. The singling out or banning of one product or category is not going to solve that. Consumer education is what’s going to do it.” See Phusion Projects Press Release and The New York Times, October 26, 2010.

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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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