Regulators Stage Extreme Refreshment Crackdown

Washington, D.C., May 27, 2010—The Food and Drug Administration’s attempts to crack down on makers of alcoholic beverages with added caffeine are unwarranted and rely on either irrelevant or misleadingly applied research, according to a new study published by the Competitive Enterprise Institute. The study warns that the possible ban of such drinks could also endanger the market for more common and widely-enjoyed products.

“The agency’s campaign against alcohol energy drinks (AEDs) is wasteful and misguided,” said study author Baylen Linnekin, a food and beverage law expert. “It 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.”

The current threat of an AED ban originated in November 2009, when the FDA contacted manufacturers and took the unusual step of insisting they provide positive proof that their products were “generally regarded as safe,” a technical category that the FDA uses to decide how much regulatory scrutiny various products should receive.

“The FDA’s effort, brought at the behest of grandstanding state attorneys general and pro-regulation activist groups, is nothing more than an unprincipled attack on a small, politically incorrect segment of the market,” said CEI Director of Food and Drug Policy Gregory Conko. “Moreover, the central objection is not just to the mixture of alcohol and caffeine in a product, but the addition of caffeine to a food or beverage at all. The same 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.”

Consumers should be aware that the advocates of an AED ban – who instigated the action – have even greater ambitions. Some of the loudest critics have called for banning not only the sale of pre-mixed alcohol energy drinks, but for regulations and laws prohibiting the mixture of any caffeine and any alcoholic beverage. Such a move could make it illegal for bartenders to mix vodka with non-alcoholic energy drinks, or even to make Irish coffee or rum and Coke.

Baylen J. Linnekin, author of the study Extreme Refreshment Crackdown: The FDA’s Misguided Campaign Against Alcohol Energy Drinks is a lawyer, writer and blogger. He holds a Master of Laws degree in Agricultural and Food Law from the University of Arkansas. 

CEI is a non-profit, non-partisan public interest group that studies the intersection of regulation, risk, and markets.