Will The FDA Be A Buzz Kill For Caffeinated Products?

By Sam Lewis

Caffeine under much scrutiny from labeling issues to lawsuits

You can breathe a sigh of relief. Coffee, espresso, and latte lovers — this doesn’t mean you. The FDA might be taking a closer look at the addition of caffeine to products like energy drinks and gum. The speculation regarding caffeine product regulation comes months after the FDA put a halt to Wrigley’s caffeinated gum in May.

The FDA has already banned the use of caffeine in some products like malt beverages. In 2010 the FDA banned Four Loko, an alcoholic beverage loaded with caffeine, as the combination of ingesting stimulants and depressants simultaneously poses great health risks to consumers. However, caffeine has a limited regulatory status with the FDA. Currently, only one federal regulation, CFR 182.1180, makes any reference to caffeine. This gives caffeine the status of “Generally Recognized As Safe” (GRAS) maximized at .02 acceptance in soft drinks.

Energy drinks, on the other hand, are given a wider emphasis by the FDA. Some energy drink companies classify their beverages as a dietary supplement. This is where the laws regarding both types of products differ. Food and beverage products’ companies are given the responsibility of proving that a product is safe. Dietary supplement companies require the FDA to determine that the products are not safe. At this point the equation becomes even murkier. Dietary supplements only have to list caffeine as an ingredient as part of an “energy blend,” not giving specific amounts of each element in the blend.

Energy drink safety is also being examined by courts. Wrongful death lawsuits relating to adolescents consuming energy drinks have gained media attention over the last year. The family members of victims in these cases are claiming the products contain too much caffeine for adolescents to consume, and the products do not warn of dangers from excessive consumption. While the cases are still young, no legal patterns have resulted as of yet.

Manufacturers under fire have more than enough defenses against the claims. Included in them are:

• Causation — what actually caused the death
   
• Misuse — the manufacturer hold no responsibility for the consumer misusing the product
   
•  Pre-emption — the Nutrition Labeling and Education Act governs food labeling. If plaintiffs are suing regarding labels covered by this act, the case is pre-empted
   
• Primary Jurisdiction — this occurs when pre-emption is not viable, and applies when inadequate labeling claims are being addressed by another governing body

Nowadays, food-related lawsuits are on the rise. As adding caffeine to food, beverage, and dietary supplement products continues to become more popular, court cases regarding caffeine and food are likely to continue increasing in turn. Will current and future lawsuits lead to the FDA upping its ante on caffeine guidelines? Only time will tell. For now, consumers are ultimately responsible for investigating and understanding what they are ingesting, as indicated by nutrient labeling and FDA guidelines.