How the Nanny State Won't Stop Caffeine and Alchohol Mixes

Four Loko was declawed of its caffeine last week, after the FDA made initial moves to bancaffeinated alcohol beverages at the state and national levels. As a result, the drink skyrocketed even further into cult status.

The moment Representative Charles Schumerannounced his intent to get the drink booted from New York State, people seemed to race to every bodega in every borough, scooping up cases of it, hoarding it like speakeasy gunrunners. While riding the NYC subway Thursday, I overheard two men in their early 20s talking about a friend who had a stash, and was charging $10 a can. Even at a $7 markup, they sounded pretty eager to pay it.

Then, after the FDA implied its own ban, the Twitter hashtag #fourlokoingredients emerged, spoofing the hysteria with fake Four Loko recipe formulas that included everything from babies to crack cocaine. A Legalize Loko Web site popped up, too, complete with FDA petition and supportive T-shirts.

Four Loko has always had some meme appeal–if the cheeky name and camo can design didn’t help its standing among daring revelers, the fact that it looks (and sort of tastes) like radiator fluid did. Even Brooklyn assemblyman Feliz Ortiz pulled a page from Morgan Spurlock’s playbook and drank two and a half Four Lokos in an hour, with a doctor monitoring his blood pressure and alcohol levels the whole time. He emerged with a .185 alcohol level and seemed sort of proud of himself. But nothing gains popularity faster in American culture than an illicit substance, and this felt like a modern-day episode of Boardwalk Empire, played out in real-time.

In other words, the FDA’s nanny stance totally backfired.

In a statement regarding FDA's warning letters to Four Loko and three other companies, Principal Deputy Commissioner Dr. Joshua M. Sharfstein said, “FDA does not find support for the claim that the addition of caffeine to these alcoholic beverages is ‘generally recognized as safe,’ which is the legal standard. To the contrary, there is evidence that the combinations of caffeine and alcohol in these products pose a public health concern.”

Loko announced it would dump the caffeine from its formula to comply with federal demands, but neither the FDA nor Schumer has yet to provide any scientific evidence to the contrary, willing to pre-emptively curtail our liberties before sorting out whether or not their own statements are true. And, as many have pointed out, mixing caffeine and alcohol is a time-honored tradition, manifest in everything from rum and cola to Red Bull and vodka -- Four Loko’s kin. (If they expect to effectively regulate those drinks, too, expect an FDA flunkie posted up in your house 24 hours a day until you pledge teetotaller.)  

For its part, Phusion, the small, Chicago-based business that manufactures Four Loko, countered the FDA with a statement on its Web site:

We have repeatedly contended – and still believe, as do many people throughout the country – that the combination of alcohol and caffeine is safe. If it were unsafe, popular drinks like rum and colas or Irish coffees that have been consumed safely and responsibly for years would face the same scrutiny that our products have recently faced. In addition, if our products were unsafe, we would not have expected the federal agency responsible for approving alcoholic beverage formulas – the Tobacco Tax and Trade Bureau (TTB) – to have approved them. Yet, all of our product formulas and packaging were reviewed and approved by the TTB before being offered to consumers.”

The incidents that first sparked the Four Loko fracas were, indeed, horrible, and with them came litigation. Most recently, in Florida, two separate cases are pending against the beverage company, including parents who claimed their son accidentally shot himself after drinking for 30 straight hours; and a 20-year-old Orlando woman who lost her hand in a car accident after riding with a driver who was drunk off Four Loko. And in Maryland, the family of a 21-year-old woman who crashed her car into a telephone pole is blaming her death on the fact that she drank two cans of Four Loko before driving.

With these tragedies, however, it should be pointed out that that the outcome would potentially have been the same no matter the alcoholic beverage. Anyone who gets through high school knows that drinking and driving is deadly, as is binge drinking. The FDA would do better to invest time and money on combating underage drinking, extending efforts to educate the public on overconsumption and binges, rather than trying to make us feel bad by taking away our right to drink something that is likely a passing fad (seriously, it would have lived out its shelf-life... it’s gross). D.A.R.E. didn’t work, Prohibition was a joke, and putting the kibosh on something this big is incredibly shortsighted.

Besides, there’s precedent. In 2008, the popular alcoholic energy drink Sparks was set on a path similar to Four Loko. Created in 2002, the orangey, baby-aspirin-tasting beverage was one of the first to combine malt liquor with caffeine, taurine, ginseng and guarana–the same juice-boosting ingredients in non-alcoholic energy drinks like Red Bull. It, too, was popular with college kids as well as adults. But after MillerCoors bought the brand from its small, San Francisco-based startup, Sparks dropped the caffeine, substituting it with sugar. Though much of the Four Loko coverage has indicated otherwise, Sparks has been caffeine-free for two full years. Perhaps reporters missed that because it was the DC-based Center for Science in the Public Interest, a nonprofit consumer advocacy group, that sued the company into dropping the kick, rather than the FDA.

So why now? It’s not like old Sparks was anything different from new Four Loko; the morality chorus is merely louder this time. Meanwhile, this is missing out on a very good opportunity to help cut the deficit–as Mark Kleiman points out, a higher booze tax could help cut down on alcohol-related violence and driving fatalities, not to mention cut down on typically strapped-for-cash underage drinkers. Plus, the liquor lobby’s got powerful pockets. In the second quarter of 2010, the Distilled Spirits Council of the United States Inc. dropped $1.3 million lobbying Congress, and the Alcohol & Tobacco Tax & Trade Bureau, while individual distributors spent over $2 million on similar legs of the government. The Wine and Spirits Wholesalers of America put in $260,000 lobbying the FDA, among others.

And some are implying the liquor lobby itself is behind this, though that may never be known. The conjecture makes sense, though–Four Loko sales had quadrupled since 2009, and the big alcohol lobby has a history of defending its income, most recently pouring 10 grand into Prop. 19 opposition funds in California, wary that weed legalization would encroach on its annuals.

Craig Purser, president of the National Beer and Wine Association, released a statement last week supporting the Four Loko ban. “NBWA commends the FDA for taking action today,” he said. “Some states already have taken action with regard to these products while others have delayed action, or have temporarily withdrawn approval of these products while waiting for more information. This action today will help guide states in determining the best approach to regulating these products.”

Meanwhile, other beer distributors rejoiced. John Michalski, a Philadelphia distributor, told ABC News, "Now we can get back to selling beer. Our beer sales were way down because of that Loko, but now they'll have to buy the beer, so we're happy." Clearly, a whole generation of college students isn’t going to stop chugging booze just because something’s off the shelves. One wonders if the FDA has ever heard of beer bongs.

Regardless, the FDA ban on caffeinated alcohol beverages is presumed to be a done deal. Even Four Loko co-founder Jaisen Freeman seemed resigned to it all in the press release about cutting out caffeine. “We understand that the Board wants to address alcohol abuse and underage drinking. The only effective way to do that is with stricter enforcement of existing alcohol laws and more education and awareness,” he said. “This is why the alcohol education component of this agreement was important to us....we want our company to be known for cooperation and collaboration, not controversy.” Defeatist, sure. And one of the sanest statements in this argument.


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