FDA Energy Drink Ban Begs Question: What Next?

The Food and Drug Administration’s (FDA) move this week to ban Four Loko and similar energy drinks containing caffeine and alcohol is all over the news. My colleagues Michelle Minton and Greg Conko have blogged on Openmarket.org with all the details why the move represents both regulatory overreach and a threat to our freedoms that go beyond this one beverage. Also worth reading is attorney Robert Lehrman’s posts on the topic on his blog Bevlog.

How far will FDA take this regulation? Conko points out that FDA could use the logic it applied under this action to ban such things as Doctor Pepper or even mixed drinks simply because, according to the regulation, adding caffeine to a non-cola drink now constitutes illegal “adulteration” of a food product.

But the ban was not really pursued simply because FDA suddenly discovered that caffeination violates the nation’s food safety laws. It is a political response to news stories regarding students abusing the product, often along with other alcoholic drinks. These are indeed sad stories, but unfortunately kids have been abusing a variety of substances for decades. This is a cultural problem that government bans won’t solve.

Rather than help our youth, this ban may have dangerous results. Rebellious college kids–away from home for the first time–may well respond to this nanny-state regulation mixing their own, more potent drinks. And that won’t be as hard as one might think.

Four Loko delivered a good-sized dose of caffeine and alcohol largely because it came in relatively large cans–16 ounces and 23.5 ounces–each with 12 percent alcohol. News stories say caffeine content for Four Loko ranged up to 156 milligrams (mg) of caffeine per 23.5 ounce container, but the amount may have been lower. According to the New York Times, the makers of the drink said it contained 135 mg per 23.5 ounce container, which comes to 5.8 mg per ounce. Consider that some Espresso contains about 50 milligrams of caffeine for just one ounce. Conko provides some other useful comparisons, noting that an eight ounce Starbucks coffee contains 160 milligrams of caffeine or 20 mg per ounce.

Accordingly, it won’t be hard for kids to still continue consuming high levels of alcohol and caffeine if they mix drinks themselves. In addition to using coffee, some are already exploring other mixes that use caffeine pills and posting them online. What can FDA do about this? Nothing other than take the blame.