Congressional Energy Drink Report Pushes Voluntary Industry Actions

Legislators want energy drink makers to rein in their marketing and labeling practices, while pressing FDA and FTC to use existing regulatory authority against the products. History suggests legislation in this area would be hard-pressed to gain traction.

Lawmakers are pressing FDA and the Federal Trade Commission to use existing regulatory authority to crack down on energy drinks, and asking the industry to make changes, while holding off on legislation that might antagonize the dietary supplement industry.

A report released April 10 by Rep. Edward Markey’s office, in coordination with the staff of Sens. Dick Durbin, D-Ill., and Richard Blumenthal, D-Conn., summarizes the findings that stemmed from information requests to 13 energy drink makers. It also offers several recommendations for product labeling, marketing and safety monitoring (Also see "In Brief" - Pink Sheet, 21 Jan, 2013.).

A spokesman for Markey, D-Mass., said the trio of legislators is in talks about next steps, declining to say whether a bill or committee hearing is in the works. For now, they await the results of an FDA investigation into serious adverse events linked to energy drinks and hope FTC looks more closely at the marketing of highly caffeinated products to children, he added.

In a same-day statement, Markey encouraged the agencies to act: “It’s time for the FDA to crack down on these drink makers and for the FTC to investigate advertising practices of these companies to ensure that kids and parents are not being subjected to deceptive marketing practices.”

Durbin and Blumenthal took aim at energy drinks in the 112th Congress via their Dietary Supplement Labeling Act, though it failed to gain support as a standalone bill and as an amendment to the FDA Safety and Innovation Act (Also see "Energy Drink Concerns Could Tilt Congress Toward DSHEA Changes" - Pink Sheet, 3 Dec, 2012.).

Durbin has said he will reintroduce the legislation this Congress, but he may be stuck between a rock and a hard place. His bill’s proposal to amend the Dietary Supplement Health and Education Act mainly to address concerns about energy drinks already has proven a nonstarter in the Senate. Any attempt to carve out energy drinks as a separate regulatory category likely would pose an even more Herculean task.

Supplementing Or Refreshing?

The report from Markey’s office paints a picture of the U.S. energy drink market worth more than $12.5 billion in annual sales but marred by inconsistent labeling, unsubstantiated claims and allegedly illegal marketing to children.

Of the energy drink firms queried, only two declined to answer the staffers’ questions: Sambazon, the maker of acai berry energy drinks, which asked to be omitted from the investigation; and 5-Hour Energy shots maker Living Essentials LLC, which provided a copy of its patent instead of responding to questions.

One of the report’s chief concerns is the lack of consistency in energy drink labeling, with some products represented as conventional foods and other comparable products labeled as supplements.

This observation may reflect an industry in flux, as Monster Beverage Corp. and other players are repositioning many of their energy supplement products as foods (Also see "Energy Drinks Swayed By Liquid Supplement Draft Guidance After All" - Pink Sheet, 25 Mar, 2013.). But the report notes persistent inconsistencies.

“Interestingly, Monster indicated in its response that it views its products as intended to specifically supplement the diet with dietary ingredients and ‘not merely to be consumed ad libitum to provide refreshment and good taste,’” the report says. “Despite this declaration, the company still transitioned its products (with the exception of Worx Energy) from dietary supplements into the beverages category.”

Supplement makers are required to submit to FDA serious adverse event reports linked to their products, while food firms must file through FDA’s reportable food registry reports of any foods with “a reasonable probability” of causing serious adverse health consequences or death. Markey’s report states a preference for energy drink companies to follow the sAER requirement.

Trade Group Guidelines Don’t Reach All

Industry groups are moving to head off the threat of bad publicity and potential legislation. The Council for Responsible Nutrition and the American Herbal Products Association recently published guidelines advising their members to disclose total caffeine content for products with at least 25 mg of caffeine per serving, though the congressional report prefers that labeling on any non-resealable container cite the product’s total caffeine content (Also see "Trade Groups Expand Caffeine Labeling To Stave Off Tighter Regs" - Pink Sheet, 8 Apr, 2013.).

CRN noted in an April 11 release that it agrees with the recommendation to label products with total caffeine from all sources. “Most of the recommendations in the report are consistent” with CRN’s guidelines, the group notes.

The American Beverage Association said in a response to Markey’s report that its member companies “have already voluntarily implemented many of the recommendations included in the report,” noting that “leading energy drink makers” disclose total caffeine amounts on their packaging and refrain from marketing energy drinks to children through high school age.

But the report points out that the makers of some top-selling products are not ABA members, such as Living Essentials, which does not disclose caffeine levels on 5-Hour Energy.

The report also highlights companies seemingly skirting ABA’s voluntary guideline against marketing to children, including ABA member companies Monster, Red Bull North America Inc. and Rockstar Inc., which both sponsor music and sports events that appeal to younger teenagers.

Markey inquired with FTC in November 2012 about potentially violative marketing of energy drinks to children and to adults with unsubstantiated claims (Also see "FDA Energy Drink Plans Earn Durbin’s Stamp; Firms Meet With Agency" - Pink Sheet, 10 Dec, 2012.). In an email, an FTC spokesman declined to comment on whether the agency is investigating or plans to investigate energy drinks.