Science and Law
22nd January 2013

ENERGY DRINKS: CAFFEINE LITIGATION ON THE HORIZON?

Late last week, three lawmakers (Senator Durbin, Senator Blumenthal, and Congressman Markey) sent letters to more than a dozen manufacturers of caffeinated energy drinks, as a follow up to letters sent by the lawmakers to the FTC, and FDA.

ENERGY DRINKS: CAFFEINE LITIGATION ON THE HORIZON?

Late last week, three lawmakers (Senator Durbin, Senator Blumenthal, and Congressman Markey) sent letters to more than a dozen manufacturers of caffeinated energy drinks, as a follow up to letters sent by the lawmakers to the FTC, and FDA. The letters  pose a series of questions requesting information on a variety of issues including:

  • A request for the milligram quantity of caffeine (from all ingredient sources) in the entire package

  • Data to support marketing claims: “What ingredients, aside from caffeine, impact advertising and marketing claims made by your product(s)? … Please provide data and documentation to support your answer.”

  • Do you believe your product(s) is a conventional food product or dietary supplement? (Notably, requirements for ingredients, reporting of adverse events, and labeling differ depending whether the product is positioned as a beverage or as a supplement).

  • Data to support safety in children/teens: “Has your company performed any studies to determine whether your product(s) is safe for consumption by children and teens?”

Letters were issued to major marketers of these products including: Monster Beverage, Rockstar, Red Bull and Living Essentials (distributor of 5-Hour Energy), PepsiCo (Amp), Coca-Cola (NOS), Dr. Pepper Snapple (Venom Energy).

As reported in a previous ISS posting, the FDA has started examining the safety of energy drinks after reports of deaths and injuries potentially associated with the products.

Further, these recent letters dovetail a federal report issued last week by the Drug Abuse Warning Network (DAWN).

The report found that the number of emergency department visits involving energy drinks doubled from 10,068 in 2007 to 20,783 in 2011. Interestingly, when emergency department visits involving energy drink combinations were examined by drug type, pharmaceuticals were commonly combined with energy drinks (27% of visits), with 9% of these involving central nervous stimulants like Ritalin. Energy drinks in combination with alcohol were involved in 13% of energy drink-related ED visits, and illicit drugs were implicated in 10% of energy drink-related ED visits.

In response, Monster Beverage Corp. raised concern with the study stating: the “report on so-called energy drink-related emergency department visits is highly misleading and does not support any conclusion that energy drinks are unsafe for consumers.” The primary rebuttal was built on the view that a substantial number of the emergency visits were confounded by other factors such as existing illnesses, use of pharmaceuticals, illicit drugs, and alcohol. Monster also made the sobering point that “leading brands of coffeehouse-brewed coffee typically contain more than 20 mg of caffeine per ounce, which means a medium 16-ounce coffeehouse coffee contains at least 320 mg of caffeine” and “Monster energy products generally contain approximately 10 mg of caffeine per ounce from all sources.”

Clearly, this story is in its infancy (for example, other public officials, including the city attorney of San Francisco, have also begun inquiries into energy drink claims), but as always, a careful evaluation of the evidence will be critical to distinguish and understand the factors that are important and those that are incidental.

Should the issue of caffeine toxicity become adjudicated in the courts, this leads to the interesting issue of specific causation – that is, an evaluation of whether it can be demonstrated that the exposure caused the adverse event or disease state in a specific individual.

As is usually the case, there is more to this story than meets the eye, and with energy drinks, there are many aspects to this controversy that science can help settle – but the evidence must be weighed carefully.

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