Late yesterday evening, the maker of Four Loko announced it was removing caffeine from the popular alcohol beverage. This came following media-driven hysteria, state bans, and a potential federal ban from the FDA. My colleague Greg Conko analyzes the likely FDA regulation here.
You might not like the idea (or the taste) of Four Loko, the popular beverage that combines caffeine, other stimulants, and 12 percent alcohol in a candy-colored 23.5 ounces. But if you do like any alcohol beverage or any other product that could be remotely controversial, you should care about the banning and treatment of Four Loko and other similar alcohol energy drinks by government officials.
While several states have banned or taken steps to ban Four Loko and other similar products, which some believe contain a dangerous cocktail of caffeine and alcohol, the most disturbing developments occurred in New York where the product was not banned through a legislative process. Rather, it was intimidation and strong-arm tactics, including "convincing" the state's largest distributors to "voluntarily" agree to stop selling the beverage, and conducting raids on bars and restaurants serving the drink. According to an account by Eddie Huang, the owner of New York City restaurant Xiao Ye, which proudly serves Four Loko, the New York State Liquor Authority (SLA) raided Huang's restaurant last Friday night, just before announcing the deal with distributors not to sell Four Loko. Eddie reacted to the raid on his blog:
We followed the law, we were in line with the SLA requirements, but basically, it was understood that if we kept selling Four Loko, we would be seeing a lot of raids... All Four Loko in the house was destroyed on site, it was taken off the menu, and four Loko Thursdays is cancelled.
It still isn't certain that the SLA actually destroyed any of the product (the SLA denies destroying any Four Loko), but the raid is obviously meant to scare Eddie Huang from promoting the drink at his restaurant. The "voluntary" agreements with the large distributors is disturbing alone, especially when one considers that future federal legislation would likely make it impossible to get beer any way other than going through a distributor.
The CARE Act (H.R. 5034) would prevent the federal government from using the dormant Commerce Clause to stop states from enacted discriminatory laws against out-of-state producers of alcohol. My colleague Angela Logomasini describes the proposed legislation here.
Of particular concern is the fact that the new legislation would almost certainly be used to prevent direct shipping of wine, beer, and any other alcohol beverage. This means that retail operations would be forced to rely on distributors to get the products their consumers want. If one regulator has an issue with a particular product, vineyard, or brewery, he or she could convince distributors to "voluntarily" agree not to sell the product.
The FDA: Banning Out of Fear
For the last few years a widespread skepticism about alcohol energy drinks (AEDs) has prompted the FDA and other regulatory agencies to investigate the products. In 2008 MillerCoors "voluntarily" agreed to reformulate their massively popular drink called Sparks after state attorneys general applied pressure to the company. In 2009, the FDA jumped into the debate when it sent letters to several manufacturers AEDs, giving them 30 days to produce evidence showing that the alcohol-caffeine combo is safe for consumption.
Now the FDA has set it sights on Four Loko and will likely announce their decision today on whether caffeine is a "safe" ingredient to add to non-cola products. Such a decision could impact many more beverages than Four Loko alone.
Lawmaking that is based purely in panic and on anecdotal evidence as opposed to scientific is nothing new. The FDA and state lawmakers are up in arms about Four Loko as a result of a few isolated incidents of people behaving badly while drinking the product. Whether or not their is a direct correlation between the behavior and consumption of the product is not known and doesn't seem to matter to the FDA or state regulators.
Whether or not you like Four Loko, you should defend consumers, retailers, and restaurant owners' right to make the choice for themselves whether or not they want to buy or sell a product.
CEI saw this wave of misguided, manufactured outrage coming. Earlier this year, we published a study on alcohol energy drinks (AEDs) by Baylen Linnekin, “Extreme Refreshment Crackdown,” on FDA’s continued harassment of AED manufacturers and the lack of evidence supporting their alarmist claims.
Image credit: The Wisest Wizards' flickr photostream.