Today, Dec. 5, is the day to go out and raise a glass to celebrate the anniversary of the repeal of alcohol prohibition in the United States. For many of us, the era of prohibition feels distant and forgotten. We assume since Prohibition was overturned nearly 80 years ago, every last remnant of it is dead and buried. Unfortunately, that is not the case.
Despite the passage of the 21st Amendment, which officially repealed prohibition, remnants live on in the form of state- and local-level bans on Sunday, Election Day, and Christmas sales, and the three-tiered system that forces an artificial separation between the makers, distributors and sellers of alcohol that makes no economic sense (about which you can read more about here). But the truly important hangover from Prohibition remains in the extension of the temperance movement to other products. Just as in the days of Carrie Nation, self-styled “public health” advocates continue to claim to know what is best for everyone and are determined to force their opinion on the whole of society.
The only real difference is subtlety. For-your-own-good crusaders learned their lesson in the 1930s: Bans don’t work. They serve only to arouse that part of the American psyche that rankles at the thought of being told you can’t have something. If you truly want to prevent consumer access to something, you must first convince them it is evil so that they become reluctant to come to its defense. Then you slowly squeeze the product out of the market through taxation and restrictions on sales and advertising. We’ve come a long way from the days of Demon Rum. Today’s do-gooders’ favorite tactic is to label something as “unhealthy.”
Take the case of Four Loko, the alcoholic energy drink that was taken off the market in 2010—not because of any evidence that the product was inherently dangerous to consumers, but because a coalition of health advocates and busybody lawmakers convinced the general population it was a “bad” product from which consumers needed to be protected. The beverage, branded by the media as “blackout in a can” and, thus, popular among college-age young adults, reportedly was involved in several highly publicized cases of hospitalization. Sensational news accounts alleged the combination of alcohol and stimulants, rather than irresponsible behavior, caused these incidents.
These reports and the increasingly loud cries of public advocates and parents, state lawmakers and state attorneys general (AGs) pressured the FDA to request alcoholic energy drink makers, including the makers of Four Loko, to voluntarily remove their products until their safety could be determined. Some states actually banned the sale of Four Loko. As a result of this pressure and in an effort to avoid going out of business (as at least one other company caught up in the FDA’s alcoholic energy drink crusade did), Four Loko’s manufacturer, Phusion Projects, voluntarily reformulated the drink in 2010 to remove caffeine, guarana, and taurine and had it back on shelves by 2011. You can still buy Four Loko — it was never banned — but the original Four Loko is gone forever.
Four Loko is just one example. One need only look at salt, fat, sugar and now caffeine to see the exact same pattern: One group thinks it knows what is best for all demonizes a product and calls for regulatory action against it.
Most recently, non-alcoholic energy drinks have been targeted by health advocates who see caffeine as a menace to public health. Their latest attack occurred this past October when, as part of a Freedom of Information Act request, the FDA revealed three of the most popular energy drinks — 5-Hour Energy, Rockstar and Monster — allegedly were involved in 145 adverse incident reports made to the agency since 2004. The media responded with such provocative headlines as Can Energy drinks kill? The FDA Investigates, Consumers Worry, a Business Under Fire (Forbes Oct. 23, 2012), Are energy drinks fatally caffeinated? (Time Oct. 24, 2012), The Health Risks of Energy Drinks (Huffington Post Oct. 25, 2012), When caffeine kills: energy drinks under the spotlight (NBC News Oct. 23, 2012).
But if one looks beyond the headlines, the numbers—as I noted in The Hill last week—are statistically insignificant. Of the 145 incidents reported over eight years, the majority of the incidents were mild—some as mild as bouts of crying, irritability or fatigue. Some were serious — 18 deaths were reportedly related to energy drink consumption, one of which was a suicide. But, averaged out, that’s about six incidents per year per product. It is worth noting the FDA states these reports are not proof of blame and may be missing relevant information such as if the person has medical condition, was taking medication or using other substances at the time.
But, despite the FDA’s statement and the fact it recently did an investigation of the safety of energy drinks this summer that concluded Americans’ consumption of the products was not a threat to public safety, it announced last month it would take another look at energy drinks. What changed in a few short months? The only answer seems to be public pressure.
As the media lap up the juicy stories thrown to them by health advocates, bureaucrats and lawmakers are taking hasty actions to restrict energy drink sales. Lawmakers in Suffolk County, N.Y.,, are trying to ban sales to those under the age of 19, and an alderman in Chicago wants to ban sales to anyone under 21. Again reminiscent of the Four Loko case, state attorneys general are now taking action against energy drinks; New York State AG Eric T. Schneiderman launched an investigation over the advertising practices of several energy drink companies over the summer.
It’s unknown how the media reports are affecting sales of energy drinks,but after reports came out regarding Schneiderman’s investigation, the manufacturer of Monster energy drink saw its shares drop by 11 percent.
Is this enough to convince the makers of Monster, 5-hour Energy, Rockstar and other such drinks to stop selling or change their product? Not yet, but if pressure continues to build on the FDA, the agency will continue to investigate energy products, news outlets will continue to print provocative headlines, and state and local lawmakers will pass regulations restricting sales. It isn’t a ban, but in the end consumers will be left with fewer choices than before.
So, although we celebrate the end of the ridiculously unsuccessful attempt to prohibit alcohol sales in the 1920s, it’s important we remember how easily it could happen again. Seventy-nine years ago alcohol was the evil product nobody wanted to defend, Today it’s fat, sugar and caffeine—if we want to prevent prohibition from reoccurring we must defend the right of each individual to consume whatever he or she wants. Even if we don’t think it is good for them, it should be their decision to make.