FDA And Caffeine: Selective Regulation By Unsubtle Threat

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Cross-posted at WLF’s Forbes.com contributor page

Hey you!  Yes you, food company (no, not you, coffee proprietor). We’re not happy that your product has caffeine in it. Um, you know, you really might want to reconsider that particular ingredient.

Fans of smaller government might almost be tempted to applaud the Food and Drug Administration’s (FDA) recent approach to addressing caffeine in processed foods and drinks. Unsubtle threats and heavy-handed persuasion take up no space in the Federal Register, require little time or staff, and can produce big results for little cost.

Washington Legal Foundation certainly prefers smaller government. But as firm believers in due process, fair notice, consistency, and transparency from our Fourth Branch of government, we won’t be applauding FDA on this. The agency should stop its sabre-rattling, make a defensible case for bureaucratic action, and pursue a public process if need be.

As it often does on many issues, FDA is taking its cues on caffeine from professional activists and publicity-seeking politicians. U.S. Senators and state attorneys general have been busily besmirching (and subpoenaing) energy drink makers. The City Attorney of San Francisco (the city that banned the Happy Meal) has sued Monster Beverage for allegedly marketing its drink to children. Then last November, Center for Science in the Public Interest (CSPI) dispatched a two-page letter to FDA on the “new craze” of adding caffeine to processed foods.

FDA caffeineOn May 3, FDA Deputy Commissioner for Foods Michael Taylor spoke out against what he called the “unfortunate” trend through a Q&A on the agency’s Consumer Updates page, a page which included the image here on the left. Taylor specifically called out gum maker Wrigley on a new product, and stated that while formal regulation might be forthcoming, “we hope this can be a turning point for all to prevent the irresponsible addition of caffeine to food and beverages. Together, we should be immediately looking at what voluntary restraint can be used by industry.” Wrigley got the message and on May 8 announced a halt in production of the gum.

The FDA Deputy Commissioner has expanded his persuasion campaign, talking to the Washington Post for a June 1 story on the agency’s concerns. “Isn’t it time to pause and exercise some restraint,” he asked (not-so) rhetorically. Parroting the PR tactics of groups like CSPI, Mr. Taylor expressed concern over the “cumulative amount” of caffeine available, particularly for children.

It’s bad enough that the agency’s approach circumvents every constitutional and statutory check and balance purposefully placed on bureaucratic action. It is also doomed to failure by being both under- and over-inclusive. Coffee is a much more widely available source of caffeine, and an equal-sized portion of it can contain twice as much caffeine as one demonized energy drink. But no one at FDA is looking to seize your or even your children’s cup (or two, or three or four cups) of Joe. And as one researcher quoted in the Post article stated “it is a lot harder to scarf down half a dozen Wired Waffles than it is to drink several cups of Starbucks coffee.”

Also, as long as FDA’s actions aren’t tethered to standards or science, they threaten to sweep in products that don’t merit any concern or scrutiny. During FDA’s successful effort to drive some caffeine-infused alcoholic beverages, like Four Loko, off the market, it also sent warning letters to brewers whose product line featured beers brewed with coffee. The amount of caffeine in and serving sizes of the beer paled in comparison to Four Loko, which led the head of a craft-brewing association to feel such letters were “inadvertent.” He did add, however,

brewers should be concerned. This could lead the FDA to question beverages that get their caffeine from natural products like coffee, chocolate or tea. Who’s to say where this will end?

Where indeed?

2 thoughts on “FDA And Caffeine: Selective Regulation By Unsubtle Threat

  1. Pingback: Food roundup - Overlawyered

  2. Pingback: Update: Court Allows Energy Drink Maker’s Defensive Lawsuit Vs. San Francisco to Advance | The Legal Pulse

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