FDA’s Caffeine Power Grab
Washington, D.C., November 17, 2010: The Competitive Enterprise Institute today called a pending FDA ban on caffeinated-alcoholic beverages a misguided and arbitrary extension of federal power that could cause substantial collateral damage in the nation’s food and beverage market. U.S. Senator Charles Schumer announced that the Food and Drug Administration plans to rule that caffeine is an unsafe food additive for alcoholic beverages. But the source of FDA’s authority to ban the combination of caffeine and alcohol is an agency regulation making it unlawful to add caffeine to any food or beverage other than “cola-type” drinks.
“This FDA power grab will have little or no benefit for public safety,” said CEI Director of Food and Drug Policy Gregory Conko. “Most people who drink caffeine and alcohol mix the two substances themselves at home or at a bar, and all the research into alleged abuses of the combination examine those self-mixed drinks. The FDA is making an unwarranted extrapolation to pre-mixed commercial products in order to justify its regulatory over-reach. But the same legal arguments could be used to ban everything from Mountain Dew and Dr. Pepper to an array of popular candies and snacks that currently contained added caffeine.”
The FDA notified caffeinated-alcoholic beverage manufacturers in November 2009, demanding that they prove their products are “generally recognized as safe,” or GRAS, a technical classification that the agency uses to determine the regulatory status of various food additives. According to a May 2010 CEI study, however, 100 years of historical evidence detailing the common mixture of caffeine and alcoholic beverages clearly shows that consumers can safely consume the two together. “Apparently everyone but the FDA and a handful of nanny state activists recognize that the combination of caffeine and alcohol is indeed generally recognized as safe,” said Conko.
“Since the FDA’s central legal objection is not merely the mixture of alcohol and caffeine, but the addition of caffeine to any food or beverage other than cola-type drinks, the same argument could be used to ban everything from Mountain Dew and Dr. Pepper to an array of popular candies and snacks that currently contain added caffeine,” said Conko. “While that scenario may seem far-fetched, several other countries, including Canada and Australia, already enforce their prohibitions on the addition of caffeine to anything but cola-type soft drinks,” he said. “It’s time the FDA started treating consumers old enough to purchase alcoholic beverages as adults,” Conko added.
CEI is a non-profit, non-partisan public interest group that studies the intersection of regulation, risk, and markets.
Read the May 2009 CEI study, “Extreme Refreshment Crackdown: The FDA’s Misguided Campaign Against Alcohol Energy Drinks.”
For more information, or to schedule an interview with CEI staff, please contact Lee Doren at Ldoren@cei.org or 202-331-2259