NY investigates energy drinks

The Wall Street Journal reported New York's attorney general is investigating energy drink ingredient and health claims. The article by Reed Albergotti and Mike Esterl said Attorney General Eric T. Schneiderman issued subpoenas in July to PepsiCo Inc. (which markets Monster Energy Drinks) and Living Essentials LLC (which makes 5-hour Energy drink), asking for information on the companies' marketing and advertising practices. The article's source is a "person familiar with the matter."

The article said Schneiderman wants to know if energy drink companies are misleading consumers with inaccurate labeling and advertising. "The investigation is in the early stages and could expand to other companies, that person said," Albergotti and Esterl wrote. According to the article, investigators are examining whether the companies overstated health benefits and understated the effects of caffeine.

Energy drinks have been controversial since FDA released its "Guidance for Industry: Factors that Distinguish Liquid Supplements from Beverages" in 2009.  According to the draft guidance, beverages can be distinguished from liquid supplements based on factors such as the volume in which they are intended to be consumed, product or brand name, labeling, advertising and packing as a single or multiple use beverage. FDA has not issued a final guidance, but it did send a warning letter to Revolt Distribution in December of 2011 that adopted some of the principles expressed in the draft.

They controversy heated up in April of this year when Senator Dick Durbin (D-IL) called for FDA to investigate energy drinks and clarify the definition of conventional food and beverages versus supplements. Durbin also asked FDA to enforce its regulatory authority over the caffeine levels in energy drinks marketed as supplements. Durbin asked FDA to review safety concerns posed by additives in energy drinks by requiring manufacturers to provide scientific evidence that ingredients, such as guarana, taurine, yerba mate, kola nut and ginseng, are safe for their intended used and when used in combination with other ingredients and caffeine. He also asked FDA to extend its 0.02% caffeine limit to energy drinks; currently, FDA enforces this limit in soft drinks, but Durbin said is not actively enforced for energy drinks.

In August, FDA responded to Durbin, saying no current data shows a significantly widespread caffeine consumption problem due to energy drinks, and said the regulatory distinction between beverages and liquid supplements is a complex decision taken on a case-by-case basis.  In its response,  FDA said the amounts of caffeine in energy drinks are similar to those found in commonly consumed beverages such as coffee. FDA further noted up as much as 400 mg/day of caffeine is not associated with general toxicity, cardiovascular problems and negative effects on bone status or calcium balance.

But FDA does not enforce state laws, and perhaps the New York probe will determine that energy drinks violate state laws. And if we look to California's Prop 65 as any indication, a state law that affects such a large market, such as New York or California, can affect the way product manufacturers create products for a much wider audience. It will be interesting to see what comes, if anything, of this New York probe.