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Congressional Report Examines Energy Drinks

April 15, 2013

Representative Edward J. Markey (D-MA), Senator Richard J. Durbin (D-IL) and Senator Richard Blumenthal (D-CT) launched an investigation into the practices of fourteen commonly sold energy drink brands.

Accounts of illness, injury and even death, reported in several adverse event reports released by the Food and Drug Administration (FDA) has led to rising concerns over energy drink consumption. In light of consumers’ increasing alarm over these findings, Representative Edward J. Markey (D-MA), Senator Richard J. Durbin (D-IL) and Senator Richard Blumenthal (D-CT) launched an investigation into the marketing, manufacturing and labeling practices of 14 commonly sold energy drinks on the market.
In a new report titled “What’s all the BUZZ about? A Survey of Popular Energy Drinks Finds Inconsistent Labeling, Questionable Ingredients and Targeted Marketing to Adolescents,” the staff of Rep. Markey, and Sens. Durbin and Blumenthal asked each of the 14 companies to respond to a series of questions. Information was requested on how each company determines whether its product should be represented as a dietary supplement or a conventional food; the ingredients used in the products; the levels of caffeine and serving size of the products; the studies performed to back up any claims made about the benefits of the products; and the marketing and advertising practices employed by the companies to target youth audiences.
The reports findings saw a range of inconsistencies in various marketing, labeling and ingredient disclosure requirements applied to energy drinks. As a result, nearly identical energy drinks can be marketed and represented to consumers differently, leading to consumer confusion and a lack of transparency.
Additionally, energy products were found to come in a range of sizes, with various amounts of caffeine that exceed what has been previously recognized as safe by FDA for soda beverages (approximately 71 mg of caffeine per 12 ounces). Despite these elevated levels, concentrations of caffeine are not uniformly represented on the label of the brands evaluated.
All 14 companies surveyed stated that they do not market energy drinks to children. However, the report found that there is clear evidence that adolescent consumers are frequent targets for the marketing pitches of energy drink companies. The use of unconventional marketing practices combined with product design and placement on store shelves assists in creating product images that appeal to children and teens.
The report also stated that energy drink companies make a range of advertising claims related to the functional benefits of products that are not generally evaluated or substantiated by FDA. Some of these claims appear to be targeted to young audiences or student athletes.
In addition to caffeine, energy drinks contain a myriad of specialty ingredients whose combinations and additive impacts have not been evaluated or well understood, according to the report. Companies can and often do self-determine that ingredients are safe for use in energy drinks, and there is no requirement for companies to notify FDA of this determination or the use of the ingredient. Moreover, much like caffeine, companies can choose whether they want to disclose the amount of these other ingredients on the product label.
In response to these findings, the report recommends that a number of steps be taken to improve the transparency and representation of energy drink products to ensure companies adhere to ethical advertising practices. Recommendations include:
·      Companies should label products with a clear description of the total amount of caffeine (in milligrams) added to the product from all sources. For products that are packaged in non-resealable containers (such as pop-top cans), the label should include the amount of caffeine from all sources in the entire container, not just one serving.
·      For products that contain caffeine that has been intentionally added to the product at levels above 200 parts per million (approximately 71 mg per 12 fluid ounces), the level affirmed as GRAS by FDA, display a prominent precautionary statement that at a minimum says, “This product is not intended for individuals under 18 years of age, pregnant or nursing women or for those sensitive to caffeine. Consult with your doctor before use if you are taking medication and/or have a medical condition.”
·      Cease marketing of energy drink products to children and teens under the age of 18. Marketing includes use of both traditional media and social media as well as the sponsorship of events, activities and individuals that are intended for an audience comprised primarily of children or teens.
·      Report to FDA the receipt of any serious adverse events associated with energy drink use. Serious adverse events are defined by the FDA, but reporting is currently only required by the FDA for products that are represented as dietary supplements.
The Council for Responsible Nutrition (CRN), Washington, DC, which recently issued guidelines for caffeine-containing supplements, commented on the report and its findings.
Steve Mister, president and CEO of the CRN, stated “We’re pleased to see that most of the recommendations in the report issued by Rep. Markey and Sens. Durbin and Blumenthal on energy drinks are consistent with CRN’s recently issued recommended guidelines for caffeine-containing dietary supplements. While the lawmakers point out that the energy drink product category is relatively new, caffeine certainly is not, and is, in fact, one of the most well-studied food ingredients on the market with a long history of safe use.”
CRN concurred with the report’s suggestion to label products with the total amount of caffeine added to the product from all sources, “as this provides consumers with important information with which they can make informed decisions. Further, CRN also recommends that manufacturers of caffeine-containing dietary supplements provide label advisories that address the safe use of these products by children, pregnant women and any subpopulations that may be sensitive to the ingredient.”
Additionally Mr. Mister commented, “We [CRN] also noted that some of the work our industry has done over the past several years to help protect consumers has not gone unnoticed, as the report noted that dietary supplement companies are already required to submit serious adverse event reports to FDA. We will continue to call on FDA to finalize its Draft Guidance on distinguishing liquid dietary supplements from beverages, as CRN believes that will provide further clarity as to how companies can determine whether to market their energy drinks as supplements or conventional foods. For consumers, what’s most important is not which category these products fall into, but the fact that both categories have rules and regulations that help ensure consumers can purchase safe products.”