NPA: TINA energy drink challenge fails to correctly apply federal labeling rules

Last month the group sent letters to more than 40 energy drink companies​​ alleging that the common practice of partnering with food brands to employ nostalgic candy flavors for the drinks amounted to an attempt to sell the products to children.  

Congress took a look in 2013

Selling caffeinated energy beverages to children has been a sore point ever since the consumption of several large Monster Energy drinks allegedly led to the death of a teenage girl in Maryland in 2012.  Despite the input of adverse events experts, who said a causal relationship could not be established, the incident, along with reports of a rise in emergency room visits among children who had consumed the beverages, resulted in a high profile hearing before Congress​​ in 2013 on the practice.

A key component of the TINA complaint is the use of candy logos on energy drinks products, which Fran Fleming-Milici, PhD, Rudd Center’s Director of Marketing Initiatives, called an “egregious display of putting profit over common sense and the well-being of children.”​

In a press release, Bonnie Patten, TINA.org’s Executive Director, stated: “Energy drink companies […] are now taking a page from the e-cig industry’s playbook, violating the law by using fun kid-friendly flavors to attract children to products that are meant for adults. This practice has to stop.”​

Taking a tip from tobacco attacks

Matt Orr, Partner at Amin Talati Wasserman, LLP, which represents some of the energy drink brands targeted, told NutraIngredients-USA​ last month that TINA is, “taking a page from the playbook for e-cigarettes and trying to apply that playbook to energy drinks, but there are significant differences that could dampen any regulatory interest."​

"Energy drinks don’t pose the same harms. Nicotine is known to be harmful to adults and children, but there’s no reliable science showing harm from caffeine or energy drink consumption,” ​Orr added.

In a letter sent to TINA yesterday, NPA president and CEO Daniel Fabricant, PhD, said that the group did not correctly applying federal labeling regulations when making its challenge.

NPA: Nostalgic flavor names not enough to establish intent to market to children

Fabricant noted that the TINA challenge seems to be focused primarily on the use of nostalgic flavors usually reserved for candy products.  In Fabricant’s view, the assertion is that because of the use of those brand names and in some cases images on the labels, that is tantamount to an attempt to appeal to children.

“The FDA analyzes these factors in their totality to determine if products are misrepresenting themselves as another product type. This is critical to evaluating any product category and its intended use: all label information must be evaluated in its totality to render any evaluation on whether a product is misleading or not. Reliance on a single criterion like a flavor, is generally inappropriate. The totality of language used on the product labeling is usually the heaviest weighted factor in considering the intended use of the product,”​ Fabricant wrote.

Fabricant said when considering the labels as a whole, even if they are employing the name of a candy flavor, the products are obviously beverages, not confections.  In addition, many of the labels feature warnings against the use of the products by minors.  And more to the point, he said, the manufacturers are conforming to federal labeling laws and, in so doing, are not attempting to misrepresent the products as something they’re not.

“While we aren’t looking to assign malicious intent to your organization’s efforts, we do ask that blanket statements that would not hold up under scrutiny to cease,” ​Fabricant wrote.