On the heels of an investigation into the possible link between Monster energy drinks and five deaths, the energy drink industry as a whole has been under the legal, administrative and legislative microscope. Most recently, Senators Dick Durbin and Richard Blumenthal have requested a meeting with the Food and Drug Administration FDA following the reports that 5-Hour Energy may be linked to thirteen deaths in the past four years 5-Hour Energy.
Senators Durbin and Blumenthal are no strangers to this issue. In September of 2012, United States Senators Richard Blumenthal and Dick Durbin requested the FDA investigate the ingredients in energy drinks and the potential health effects of caffeine on children and adolescents. As a result, on October 22, 2012, the FDA stated it was launching an investigation regarding the five reported deaths and the alleged potential link to the consumption of Monster energy drinks. Demonstrating the Senators’ resolve on the issue, on November 15, 2012 Senator Durbin took the Senate floor addressing the possible link between 5-Hour Energy and thirteen deaths and, arguing for a highly regulated energy drink market, stated “they are more lethal than alcohol.”
5-Hour Energy differs from its competitors such as Monster, Rockstar and Red Bull in that the drinks are sold in two ounce bottles. However, similar to other products in this market, the caffeine content is not marked on its labeling. Labeling requirements for energy drinks differ from that of other caffeinated beverages. Under current FDA regulations, the amount of caffeine found in soda-type beverages does not have to be included on the labeling when it is at concentrations below 02 percent. At such levels, the FDA considers the ingredients to be “generally recognized as safe” or GRAS. However, energy drinks are exempt from this rule as they are marketed as dietary supplements rather than soda type drinks. As such, energy drinks may have caffeine levels markedly higher than soda-type beverages without the requirement of disclosing the caffeine level.
This most recent inquiry into the safety of “energy drink” products highlights the necessity for manufacturers, distributors and product sellers to heed the rising tide of scrutiny and prepare for what appears to be a tsunami of litigation and regulatory changes. Plaintiffs’ lawyers have already begun the campaign of client recruitment by setting up energy drink litigation hotlines and websites. It would be prudent for all beverage manufacturers who produce caffeinated beverages to verify what class of product it is supplying and ensure that all FDA regulations in place are being strictly adhered to. Moreover, manufactures distributors and sellers should consult with counsel to review product marketing claims and insurance coverage issues.