Many remember a creation, or rather concoction of The Drew Carey Show, Buzz Beer. The delightfully titled beverage was a mix of coffee and a presumably dark beer… stout perhaps. Buzz Beer almost became a character of its own, as it evolved into an ongoing enterprise, run out of Drew’s garage. If the show were still on the air, writers would be charged with the task of writing-in new federal regulations, regarding Drew’s side-business. Why? Because although fictional, Buzz Beer will soon be outlawed. While this would provide an interesting plot development for a sitcom, it will inevitably cause a slew of problems in real life. Go figure.
On Friday, the Food and Drug Administration notified 27 manufacturers of so-called “alcoholic energy drinks (AEDs),” that they have 30 days to prove the safety of such drinks. If the listed manufacturers fail to comply, or fail to prove the safety of their products, they will be forced to discontinue them. Many companies, such as Anheuser-Busch, MillerCoors, and Diageo have already stopped the sale and production of similar products, in anticipation of the FDA crackdown. Needless to say, in the midst of a recession this is not ideal.
Probes into the safety of AEDs were conducted by a task force, comprised of 18 State Attorneys General and one city attorney. The task force is called the National Association of Attorneys General (NAAG) Youth Access to Alcohol Committee… doesn’t that have a nice bureaucratic ring to it?
The co-chairs of this committee sent a letter to the FDA on September 25th, detailing the apparent risks of AEDs. The letter also claims that “caffeine as an additive to alcohol is not generally recognized as safe (GRAS) under FDA regulations.” The letter then urges the FDA to “exercise its authority under the Federal Food, Drug and Cosmetic Act.”
The Federal Food, Drug and Cosmetic Act, originally passed by Congress in 1938, is a very interesting piece of legislation. In our legal system, we have something called “the burden of proof,” otherwise known as “the presumption of innocence.” This concept is best described by a Latin legal maxim: Ei incumbit probatio qui dicit, non qui negat, which translates to: The burden of the proof lies upon him who affirms, not he who denies. Basically, if a man is charged with a crime, the State must prove he is guilty beyond a reasonable doubt… not the other way around.
The Federal Food, Drug and Cosmetic Act shifts the burden of proof onto manufacturers, by requiring that they prove the safety of an additive that is not generally recognized as safe. This is where the law gets a bit technical (as usual). Caffeine as an additive is generally recognized as safe by the FDA, but only when added to non-alcoholic soft drinks. So technically, the FDA has the authority to regulate AEDs. However, this will undoubtedly open a can of worms with regard to legislative intent.
Connecticut Atty. Gen. Richard Blumenthal, a co-chairman of the task force said “The ultimate goal is a nationwide ban on alcohol-energy drinks marketed to young drinkers.” While AEDs are relatively new, the idea behind them is quite old. AEDs stemmed from a classic, in every bartenders repertoire: the Vodka Red Bull. Once AEDs are made illegal, consumers who like to mix stimulants with depressants will likely go back to the cocktail that started it all. However, when that happens, the NAAG and the FDA will be waiting to save us from ourselves… again.
The Federal Food, Drug and Cosmetic Act, does not limit the regulation of food additives to big beverage manufacturers like Anheuser-Busch and MillerCoors. In fact, sections 201 and 409 extend such regulation to individuals, partnerships, corporations and associations. Will your local bartender be their next target? Will the Vodka Red Bull become illegal? Will Jack and Coke become illegal? Will possession of coffee while intoxicated become illegal?
Keep in mind that all things illegal were once legal. A large and overbearing government systematically seizes power from its people, by preying on their fears. The transfer of power almost always comes in the name of “public safety.” Officials in Sweden have already taken action against the Vodka Red Bull, blaming the mixture for the deaths of two reportedly “healthy” individuals. U.S. Federal Laws regulating caffeine in alcohol are already on the books. AEDs were illegal from day one. Unless we the people demand an amendment from Congress, the NAAG will continue to nag the FDA, until bar menus across America are completely unrecognizable.
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