In late October, Senators Dick Durbin and Richard Blumenthal sent a letter to the FDA urging for tougher regulation of energy drinks. The letter was prompted by news reports that the FDA has recently received five adverse event reports link a death to certain caffeinated "energy drinks". What might that mean for this segment of the industry?
In our view, it is likely that the FDA, in the coming months, will give more scrutiny to the "energy drink" industry. Keep in mind, it was only two years ago that the FDA "came down hard" on the caffeinated-alcoholic beverage industry, issuing several warning letters and essentially closing that industry segment down in a matter of weeks. One of the results of that is that energy drink companies can't legally sell versions with alcohol now – although some do appear to continue to use that tactic in their advertising and information on their web-pages. To the extent that these recent deaths involve mixing energy drinks with alcohol, we think it's likely that the FDA will take action.© 2013 Varnum LLP