So, it looks as though the FDA is now set to ban the small but growing market for so-called alcohol-energy drinks, such as Four Loko and Joose. CEI wrote about the issue back in May of this year and explained that the move is an arbitrary extension of FDA authority based on irrelevant science at the behest of grandstanding state attorneys general and pro-regulation activist groups.
As food and beverage law expert Baylen Linnekin wrote in a CEI OnPoint, "The agency’s campaign against alcohol energy drinks (AEDs) ... is based on research unrelated to AEDs and targets products the FDA should classify as generally recognized as safe. With more than 100 years of historical evidence that consumers can safely consume caffeine and alcohol together, the FDA should not stand in the way of adults’ drink choices." Most of the scare stories and essentially all of the research on the alleged abuse of caffeine-alcohol drinks are based, not on commercial pre-mixed AEDs, but on self-mixed or bartender-mixed drinks like vodka-and-Red Bull or JaegerBombs (see here, here, here, and here, for example). Nanny State activists are simply extrapolating the findings of this research to pre-mixed AEDs because, as commercial products, they are more susceptible to regulation.
As it turns out, the FDA's central legal objection to AEDs, and the source of its authority to ban the products, is not merely the mixture of alcohol and caffeine, but the addition of caffeine to nearly any food or beverage at all. Currently, it is legal for the makers of commercial products to add caffeine only to "cola type beverages", which means that the FDA could use its authority to ban countless other, much more common products, from Mountain Dew and Dr. Pepper to an array of popular candies and snacks that currently contain added caffeine. Worse still, one of the lead campaigners against commercial pre-mixed AEDs has also suggested forbidding bartenders from selling their own caffeine and alcohol concoctions, which would wipe out not only vodka and Red Bull mixes but even the popular Rum-and-Coke and Irish coffee.
Of course, it's easy to single out a small, politically incorrect product class. But it's pretty clear that young adults aren't going to stop getting their kicks from the combination of caffeine and alcohol as long as those other products are so freely available. So, the ban on Joose and Four Loko won't solve any of the alleged problems associated with caffeine's tendency to mask the intoxicating effects of the alcohol. It is not reasonable to believe that banning AEDs would have any measurable effect on drinking or drunkenness, especially given the ubiquity of self-mixed cocktails combining alcohol and energy drinks. The campaign against AEDs is therefore wasteful and misguided, and our national nanny will simply be removing one beverage option that some consumers seem to enjoy.
As my colleague Michelle Minton put it last week, "Product Bans Are More Dangerous than Four Loko."