Alcoholic energy drinks, the Pennsylvania Liquor Control Board, legal liability and you

By Dean I Weitzman, Esq. on November 9th, 2010

The PLCB asks retailers to stop selling Four Loko and other energy drinks containing alcohol and caffeine until health impacts are understood

In an unusual move last week, the Pennsylvania Liquor Control Board (PLCB) asked every one of the 17,000 beer distributors, restaurants, bars and other organizations that sell alcoholic beverages in the Commonwealth to voluntary and immediately stop selling “alcoholic energy drinks.”

The drinks, which come in colorful cans and usually have fruity flavors, have as much as 12% alcohol content in one 23.5-ounce can and are marketed under various brands including Four Loko, Torque, Hard Wired, Liquid Charge and Max Vibe.

In addition to the alcohol, the beverages are caffeinated, giving them a one-two punch for anyone who drinks them. Each can sells for under $3, making them cheap to buy, too.

The alcohol content of the drinks is equal to consuming four beers, according to a story in The Morning Call in Allentown about the PLCB’s letter.

So why did the PLCB make such a request in the first place?

Because of concerns that these cheap and plentiful drinks are being targeted and marketed by their manufacturers to young people under the legal drinking age of 21, leading to incidents across the nation involving under-aged drinkers who are being sickened and harmed by these types of drinks.

“Referred to as ‘liquid cocaine’ and ‘blackout in a can’ by many young people, the appeal of these products is growing rapidly and having devastating and sometimes deadly effects on the consumer,” the PLCB letter said. “Producers and distributors of these products have come under heavy criticism and government scrutiny for marketing efforts that may be designed to entice underage or binge drinking.”

“With developing research indicating that these products pose a significant threat to the health of all Pennsylvanians, we are respectfully requesting that each of our licensees, manufacturers and suppliers cease any marketing, promotion and sale of these types of beverages,” the PLCB letter said.

These kinds of drinks have been causing alcohol poisoning incidents on college campuses from coast to coast over the last several years.

“In early October, Lancaster General Hospital and Lancaster Emergency Medical Services Association both reported a rash of cases of people who were comatose or ill after consuming the drinks, resulting in as many as nine trips to the emergency room in one weekend here,” according to a story last week in the Intelligencer Journal/Lancaster New Era in Lancaster, Pa.

At Boston University, school officials last week distributed an official warning to students about the dangers of caffeinated alcoholic beverages like Four Loko, according to the school’s Web site. “The drink has made headlines in the past few weeks after sickening numerous students at Central Washington University in Washington state and at Ramapo College in New Jersey,” the story said. “Some of the students required hospitalization for alcohol poisoning. Both schools subsequently banned the drink.”

The combination of caffeine and alcohol is potentially dangerous “because the caffeine masks the intoxicating and depressant effects of the alcohol and makes people feel more awake as they drink,” said David McBride, director of Student Health Services at the school, according to the Web site. “This mitigation of alcohol effects may lead people to drink more than they would have if they were using alcohol alone.”

In Washington state, a 32-store grocery and pharmacy store chain announced late last month that it will no longer sell Four Loko after a group of students at Central Washington University were sickened after drinking it at a party, according to a story in The Daily Record newspaper.

Nine CWU students became ill at an off-campus party after consuming the drink, according to the story. “The nine college freshmen, ranging in age from 17 to 19, who were hospitalized after the party on Oct. 8 had blood-alcohol levels of .123 to .35,” the paper reported. “A blood-alcohol level of .3 can be lethal. One student nearly died, police said.”

In response to the incident, the president of the college, James Gaudino, banned alcoholic energy drinks on the campus, according to The Daily Record, and the state’s attorney general is seeking national restrictions and a statewide ban on the drinks.

The state of Michigan last week did impose such a ban on the sale of caffeinated alcoholic drinks, according to a story in The Los Angeles Times, while Chicago’s City Council has proposed its own ban on such drinks.

Here in Pennsylvania, the PLCB doesn’t have the authority to ban such drinks here, but is asking its vendors to stop selling them while the U.S. Food and Drug Administration finishes research on the beverages and their effects on consumers.

Such studies began in 2009 and are continuing, according to the FDA. Last November, the FDA notified some 30 manufacturers of caffeinated alcoholic drinks that the agency would begin a study of the safety and legality of the beverages.

“The increasing popularity of consumption of caffeinated alcoholic beverages by college students and reports of potential health and safety issues necessitates that we look seriously at the scientific evidence as soon as possible,” Dr. Joshua Sharfstein, principal deputy commissioner of food and drugs, said in a statement when the research began.

One of the primary issues being investigated by the FDA is the inclusion of caffeine in the beverages, according to the agency. Under its rules, a substance that is intentionally added to food or beverages is “deemed ‘unsafe’ and is unlawful unless its particular use has been approved by FDA regulation,” according to the agency. The “FDA has not approved the use of caffeine in alcoholic beverages and thus such beverages can be lawfully marketed only if their use is subject to a prior sanction or is generally recognized as safe.”

In the past, the FDA has approved the use of caffeine in soft drinks in concentrations less than 200 parts per million, but the agency has never approved caffeine for use in alcoholic beverages, the agency said.

Yes, these caffeinated alcoholic beverages have the standard federal alcohol warning labels printed on them on them:

“Government warning: (1) According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects. (2) Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery, and may cause health problems.”

The question is, are those federal alcohol warnings enough to sufficiently warn consumers of the dangers of drinking the beverages?

Can the makers of these beverages be held liable for damages and injuries to consumers because the warnings make not be as complete as necessary?

The combination of a high level of alcohol and the doses of caffeine make these drinks different from anything the FDA has regulated in the past. That’s why the agency is conducting research into these drinks.

For companies that manufacture such drinks, there can be legal liability for mislabeling the drinks, or providing inappropriate or inadequate warnings or labels, when such warning labels are required as they are on containers for alcoholic beverages.

These issues open a new kind of legal question here: If warning labels are required, should companies have an obligation to go above and beyond federal warnings so the products can be used more safely?

In this case, should the makers of caffeinated alcoholic beverages such as Four Loko also have to label their beverage cans with warnings about the potential dangers of mixing caffeine and alcohol?

Those are the kinds of issues that the FDA will hopefully address in their reviews of these beverages.

We believe that the more information that’s given to consumers, regardless of the product involved, the better. If consumers were clearly warned on a label about the potential dangers and side effects of consuming these kinds of beverages, they would at least have the opportunity to put their safety in their own hands.

By not clearly describing the potential effects of these beverages, consumers aren’t being given all the important information they require before they consume them.

In the meantime, talk to your children about the dangers of these beverages, especially if they are in high school or college and are being exposed to these drinks.

The drinks have fruit flavors, come in colorful, fun-looking cans and are cheap, and they seem to be illegally getting into the hands of under-aged drinkers who are consuming them and often getting violently ill and intoxicated.

If you or anyone you know is injured due to consuming these types of beverages, we at MyPhillyLawyer are here to help you with legal representation and understanding.