Finally some good news out of the knee-jerk ruling by the FDA to ban drinks mixing alcohol and caffeine. To their credit, they’ve put up a Questions and Answers: Caffeinated Alcoholic Beverages page. Question No. 7 answers the concerns of brewers and fans of coffee stouts, along with other craft beers that have caffeine in them as a result of ingredients that add a variety of flavors, too. The question and answer is below in its entirety.
Does This Action Apply to Coffee-Based Liqueurs?
No. These Warning Letters are not directed at alcoholic beverages that only contain caffeine as a natural constituent of one or more of their ingredients, such as a coffee flavoring. The alcoholic beverages that are the subject of FDA’s Warning Letters are malt beverages to which the manufacturer has directly added caffeine as a separate ingredient.
I have no intention to debate you on this issue—except maybe over a pint or two somewhere next time I’m in the Bay Area :-)—but “knee-jerk”. Really?
You may disagree with the FDA’s action, but I’d hardly call it a knee-jerk response. The controversy over these drinks has been developing for well over a year, and everything about the FDA’s ruling suggests, to me at least, that it reflects a lot of thought and deliberation. I’m frustrated that Question No. 7 explicitly mentions only “coffee-based liqueurs”, which tells me the craft-brewing community still has a lot of work to do to raise the profile of beer as a responsible, flavorful, and vital part of our food-and-beverage culture. Nonetheless, I applaud the FDA for how they’ve handled this issue in a way that significantly addresses a groundswell of public concern without resorting to a simplistic across-the-board policy that would sweep up a lot of innocent bystanders (e.g., our beloved coffee stout).
A pint or two sounds nice. I look forward to it.
But yeah, I think “knee-jerk” is exactly the right word, for at least three reasons:
1. “Knee-jerk” essentially means an unthinking response, usually one that’s predictable and quick. “Well over a year” in regulatory agency terms is the blink of an eye. It took 30-4 years for them to make up their minds about gluten-free beer. It took longer to agree on the organic definition, so this was pretty fast. And I’m not sure I agree that it’s actually been over a year. There was a flurry of activity about the big brewers alcohol/caffeine drinks and they voluntarily either stopped making them or removed the caffeine. Then it died down and started heating up again just in the last couple of months. Everyone I’ve spoken to who follows these kinds of things tells me this action moved astonishingly fast. And I think it was not well thought out. It doesn’t do anything to really stop kids, if indeed kids are the real issue, from mixing caffeine and alcohol. It makes it slightly harder, forces them to mix it themselves, but it doesn’t, and can’t, actually guarantee the result intended. It does have the (presumably) unintended consequence of making them illegal for adults, who — right or wrong, like them or not — should have the freedom to buy them. This is claimed to have science behind it (that they’re “dangerous”) but the so-called “study” proving this is curiously not revealed for scrutiny. It makes no sense that they’d be dangerous insofar as people have been mixing the two substances forever. The reality is I don’t really like the main products that brought this issue to a head, but I think this was not the way to handle it at all. I do agree with you, however, that it was a good idea to address people’s concerns with the Q&A, but even as you point out , even that wasn’t done all that well since they referred to “coffee-based liqueurs” and not explicitly beer, though it certainly appears to include beer.
2. And this is the more telling one, and most unthinking. It’s not actually clear that the FDA has the regulatory authority to ban these drinks. The TTB is supposed to have ultimate jurisdiction over any and all alcoholic products. The attorneys general from the several states that asked the FDA to rule on this should have been aware of that, but it’s a question that’s never been definitively answered.
3. Lastly, I think Senator Schumer is grandstanding and using this as a political stunt to bring attention to himself. The language he used in his press release, especially when he sounds like a b-movie actor calling them “toxic” (they’re not toxic) and his “let this be a lesson” hyperbole seems, to me at least, a self-aggrandizing strategy to advance his political career.
But first, let’s have that pint.
The TTB – FDA relationship is covered in this memorandum
http://www.ttb.gov/main_pages/memo-understanding.shtml
The TTB further put out a memo last year when the first FDA letters went out over the caffeinated malt beverages.
http://www.ttb.gov/newsletters/archives/2009/ttb_newsletter111809-special.html
Thanks, Jay, for the always thoughtful response. You’re a true hero to the beer community. I totally agree with point #3, by the way, and point #2 is very interesting, too. I still find “knee-jerk” to be a bit over the top, but I would also agree that, by regulatory standards, this moved quickly. Cheers! The first Four Loco, err, pint, is on me. 🙂
Still seems like responsible adults ought to be able to drink 4 Loko if they want. Not that they would.
What does this mean for that beer Moonshot? Does it still exist?
Rhonda Kallman’s “New Century Brewing Co.” was one of the four companies that got THE LETTER-
http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm234028.htm
The question and answer regarding coffee-based liqueurs has actually been up for over a year on the FDA website (it was posted with the FDA’s original inquiry in November of 2009). The FDA hasn’t addressed brewing with coffee, tea, and chocolate since their press release on Wednesday, but the language seems to allow incidental caffeine. As the Brewers Association requested in their petition, hopefully they will clarify their position soon and explicitly protect beers brewed with coffee, chocolate, tea, and yerba mate 😉
Check out that Moonshot letter. The FDA drifts into 1st amendment territory:
GRAS status is not an inherent property of a substance, but must be assessed in the context of the intended conditions of use of the substance (section 201(s) of the Act [21 U.S.C. § 321 (s)]). The assessment includes a consideration of the population that will consume the substance (21 CFR 170.30(b); section 409(b) of the Act [21 U.S.C. § 348(b)]). Therefore, the scientific data and information that support a GRAS determination must consider the conditions under which the substance is safe for the use for which it is marketed. Reports in the scientific literature have raised concerns regarding the formulation and packaging of pre-mixed products containing added caffeine and alcohol. For example, these products, presented as fruity soft drinks in colorful single-serving packages, seemingly target the young adult user. Furthermore, the marketing of the caffeinated versions of this class of alcoholic beverage appears to be specifically directed to young adults (Bonnie and O’Connell, 2004). FDA is concerned that the young adults to whom these pre-mixed caffeine and alcohol products are marketed are especially vulnerable to the adverse behavioral effects associated with consuming caffeine added to alcohol, a concern reflected in the publicly available literature (O’Brien et al., 2008; Simon and Mosher, 2007).
Sounds like caffeinated booze advertised for middle-aged adults is fine but advertising aimed at young adults (21-23?) made these drinks “adulterated.” So is Moonshot’s label aimed at young adults? Maybe Four Loko should change their name to Four Brewery and put a less-flashy label on their product… also perhaps work on the sickly-sweet antifreeze smell and Flintstone vitamin taste.