On July 31, 2013, the U.S. Senate Committee on Commerce, Science, and Transportation held a hearing entitled “Energy Drinks: Exploring Concerns about Marketing to Youth.”1 The hearing was prompted by increasing concerns that energy drinks pose health risks to teenagers due to their caffeine content. The American Medical Association (AMA), the nation’s largest physician association, is one of several stakeholders that have expressed such concern. The organization adopted a policy in June at their annual meeting to support a ban on marketing the drinks to adolescents under 18.2

Background

The Senate’s focus on energy drinks represents a renewed effort to provide tighter regulation of the industry, after Senator Durbin (D-IL) raised concerns in a letter to the Food and Drug Administration (FDA) last year.3 Initially, FDA responded that it would not take regulatory action against energy drink manufacturers because caffeine levels in energy drinks are comparable to caffeine levels in other caffeine-containing products and there was no new information that would indicate an immediate health issue.4

After additional Senate inquiries, however, FDA stated that it was reviewing the safety of energy drinks and that, based on its review, it would “take action as needed.”5 Specifically, FDA stated that the agency would examine whether the products “may pose significant risks, arising from direct toxic effects, when the products are consumed in excess or by vulnerable groups, including young people and those with pre-existing cardiac or other conditions.” FDA also reiterated its commitment to issue guidance clarifying the differences between dietary supplements, conventional foods, and beverages “as rapidly as possible.” Congress also published a report on energy drinks, which recommended labeling energy drinks with a clear description of the total amount of caffeine, displaying a prominent precautionary statement on the energy drink if it contains caffeine above the level affirmed by FDA (i.e., 200 parts per million), ceasing marketing energy drink products to children and teens under the age of 18, and reporting to FDA the receipt of any serious adverse events associated with energy drink use.6

Hearing

At the hearing on July 31, witnesses included: Dr. William Spencer, a Suffolk County legislator, the President of Coughlin & Associates (a chemical toxicology and safety consulting company), the Vice President and General Manager of Red Bull North America, the Chairman and CEO of Monster Beverage Corporation, the CFO and COO of Rockstar, Inc., a member of the Committee on Nutrition of the American Academy of Pediatrics (AAP), and the Director of Marketing Initiatives at the Yale University Rudd Center for Food Policy and Obesity.

Consumer advocates pressed for public education, research, and stronger federal guidance addressing safety incidents related to energy drinks, focusing on 12 to 16-year-olds. Other suggestions by consumer advocates included requiring product labels to identify the cumulative total amount of caffeine and other stimulants, restricting social media promotion by energy drink manufacturers and distributors and banning advertising of energy drinks from YouTube and smart phone apps, which advocates claim disproportionally appeal to teenagers.

Industry representatives, on the other hand, testified that energy drinks have significantly less caffeine than a similarlysized cup of coffee and that FDA has not identified safety issues related to energy drinks.

Industry representatives also emphasized that marketing is aimed at young adults, ages 18 to 34, but Senators pushed back, citing several examples of younger-looking children in advertisements and invitations for youth as young as 13 to represent the brand, by participating in “Monster Army” and “Rockstars for Life” programs. Senator Markey compared the promotion of energy drinks to youth to tobacco company marketing strategies, arguing that energy drink manufacturers were attempting to attract potential consumers at a young age and “make them consumers for life.”

Senators also took issue with companies promoting energy drinks as mixers with alcohol. For example, Senator Blumenthal (D-CT), expressed concern that one of Monster’s products was named “CubaLima,” because it would be compared to the alcoholic beverage “Cuba-libre” and therefore encouraged mixing the two products. The Monster Chairman and CEO argued that it was intended to be a substitute for alcohol, not a mixer.

Future Commitments

Unprompted, Red Bull North America announced several voluntary initiatives that it committed to follow, including: labeling energy drinks as conventional foods instead of dietary supplements; declaring total caffeine content on labels; banning claims using language targeting consumers under 18; not encouraging rapid consumption of energy drinks; and refraining from marketing or selling their products in K-12 institutions or sampling them within the vicinity of those schools. The Red Bull representative also stated that the company would restrict the size of its product containers if competitors agreed to do so as well.

At the hearing, Senators specifically asked the three industry member witnesses for verbal commitments that companies they represent would abide by the following standards:

  • Prohibit third party distributors from marketing energy drinks to children by placing binding language in future contracts and withdrawing from the contracts if third party distributors fail to abide by these provisions.
  • Refrain from encouraging rapid consumption of energy drinks.
  • Include individuals only over the age of 18 in promotions.
  • Use either the label “Not recommended for consumers under 18” or “Not recommended for children under the age of 16.”
  • Restrict social media promotion, such as by removing existing images on social media that promote unhealthy consumption.
  • Refrain from promoting energy drinks as sports drinks.

The three industry representatives committed to some standards, including refraining from encouraging rapid consumption. However, the companies declined to commit to age restrictions on the labels, arguing it would be misleading because energy drinks are safe for teens.

The Senate is planning to return to the subject and requested that companies reexamine their marketing policies, particularly focusing on strategies regarding younger children.