Since three federal agencies acted together on Nov. 17 to shut down the manufacturing, marketing, and shipment of caffeinated alcoholic beverages — popularly dubbed “blackout in a can” and linked to numerous injuries and fatalities (PDF) — you’d think that would be the end of the matter.
The Food and Drug Administration (FDA), the Federal Trade Commission (FTC) and the Treasury Department’s Trade and Tax Bureau gave four manufacturers of the drinks 15 days to respond to the notices.
According to a Nov. 18 story in the Washington Post, three companies have already indicated they will comply. Phusion Projects, Ltd., the maker of Four Loko, said Nov. 16 that it would remove caffeine from its alcoholic beverages. United Brands Co., the maker of Joose, disagreed with the rulings but said it would obey them; Charge Beverages Corporation, which makes Core High Gravity, said it had already decided to stop making the drink. New Century Brewing did not respond.
Even so, alcohol policy advocates argued that more should be done at the state and local level – and fast.
“It is unclear what action the federal government will take after the 15-day period, so enforcement will therefore need to come from state and local governments,” said James F. Mosher, an alcohol policy consultant who has worked with several state and national public health groups on the issue. “Since the products have now been found illegal under federal law, all states now have the authority and responsibility to take immediate action.”
“State-level product bans will continue to be necessary to get the products off of store shelves,” said Michele Simon, who directs research and policy at the institute. “States are the primary regulators of alcoholic beverages and have full authority to ban alcoholic energy drinks whether by regulatory or legislative action, or through attorney general enforcement.”
Several states have already banned or moved to limit the drinks, including Connecticut, Michigan, New York, Oklahoma, Pennsylvania, Utah, and Washington.
The same day the FDA issued its announcement, the California Department of Public Health notified (PDF) the beverage industry that under state law, “the manufacturing, sale, delivery, holding or offering for sale of adulterated food is a crime. Violation of this provision can result in suspension or revocation of your license or registration, civil penalties, and/or criminal penalties that upon conviction could result in a sentence of up to one year in jail and a one thousand dollar fine for each violation.”
On Nov. 18, the Massachusetts Alcoholic Beverage Control Commission announced (PDF) that it was prohibiting the sale of alcoholic energy drinks, effective immediately.
“This means that alcoholic beverages that contain caffeine as an added ingredient, including Four Loko, must be removed from store shelves in Massachusetts today,” officials wrote. Vendors there are now prohibited from “selling, storing, importing or transporting” the drinks; the commission directed wholesalers to pick up retaining stock from retailers.
Other states may follow suit. Advocates are now looking to state governors, health departments, attorneys general, and alcohol regulators to put pressure on wholesalers, retailers, and distributors to get the drinks off the market.
“If we don’t act quickly, there may be a run on the products at the retail level, elevating the risks to young people,” Mosher said.