September 2, 2014

FDA Moves To Save “Drunk” College Students

Kimberly Egan

Kim Egan, Partner, DLA Piper LLP

Back in the day, when disco was king, people in white lycra speed-skating suits and feather boas could lean back after a hard night of dancing and sip a rum and coke. A vodka and soda pop after a game of tennis? No problem. Irish coffee at the corner pub? Excellent. Not only excellent, Irish coffee was celebrated. And being of Irish extraction myself, I think that is hilarious. Of course the Irish would put alcohol in coffee — we’d put alcohol in a potato if we could figure out how.

That was then and this is now. FDA is expected to rule today — November 17 — that bottled drinks that mix alcohol with caffeine are unsafe. Say it ain’t so, Uncle Sam. For about a year now, FDA has been looking at drinks such as Joose, Four Loko, Sparks, Tilt, which are popular among college students for combining the kick of caffeine with the fog of booze. The “energy drink,” Joose, for example, has more alcohol than a can of beer.

States have been slowly banning these products and, in September 2009, a group of them wrote FDA and said there is “no evidence to support the claim that caffeine is Generally Recognized as Safe (GRAS) for use in alcoholic beverages.” This might seem backwards to you — aren’t we really upset because we think putting alcohol in “energy drinks” is a deceptive trade practice? In real life, yes, but attacking caffeine is the only way FDA, or any part of the federal government for that matter, can dip its toe into so-called alcopops. FDA regulates food, which we have learned in previous posts means “food and drink and chewing gum,” but not booze. States regulate booze. As does the Bureau of Alcohol, Tobacco and Firearms when illegal trafficking is involved. But not FDA.

The letter from the state attorneys general is fascinating. It says that 90 percent of Americans, including children, consume caffeine every day. It says 28 percent of American college students drink caffeinated alcohol, which is pushing up the rate of “weekly drunkenness” as well as the number of times college students “feel drunk.” Makes sense. It says that “feeling wide awake and drunk at the same time” gets college students into trouble more frequently than students who are just plain drunk, or drunk and sleepy. FDA can’t do anything about the fact that your kid might be falling down drunk. That’s totally off limits. But drunk and awake? That’s a federal issue.

I really don’t mean to make light of the serious health and social consequences of drinking. I personally think alcohol is one of the most dangerous consumer products out there, right up there with smoking. I just think there’s something wrong with a system that might end up telling us that in the interests of public health, we can’t add a little caffeine to an otherwise deadly, but legal, product.

And I don’t think this is going to turn out the way the states attorneys’ general want. In fact, I’m positive of that. Just this morning, Four Loko announced it was voluntarily removing the caffeine from it’s “energy drink.” So now its “energy drink” is just plain booze. Bottoms up.

Kim Egan is Partner in the firm DLA Piper LLP

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