Anheuser-Busch and Miller continue down their deadly path

by Steve Gardner

I’ve previously written about the reprehensible practice of Miller Brewing and Anheuser-Busch in spiking malt beverages with stimulants flavoring them in a way that attracts young drinkers.

Today, CSPI announced that we have served formal notices of intent to sue on Anheuser-Busch and to Miller, in an effort to get them to do right, and stay out of the courthouse.

The letters give great detail, but for those who hate to read the fine print, here’s a précis.

We’ll seek two kinds of relief:

•    Entry of a permanent injunction that prohibits both companies from

        (1) manufacturing and offering for sale any alcoholic beverage that contains caffeine, guarana, taurine, ginseng, or any other ingredient that is not determined by FDA as GRAS for use in alcoholic beverages;

        (2) including any ingredient that does not serve a functional purpose in the product;

        (3) representing (either expressly or implicitly) that these alcospeed products or the ingredients in the products give the consumer energy or counteract the effects of alcohol; and

        (4) making any other misleading statements.

•    Disgorgement by both companies of their profits from the sale of alcospeed into a cy pres fund to be used for charitable purposes.

And here’s why:

        (1)    No studies ensure the safety of – and new evidence demonstrates the risk of – consuming stimulants and alcohol together;

        (2)    None of these ingredients has been approved by the FDA as Generally Recognized as Safe (GRAS) for use in alcoholic beverages.

        (3)    Miller promotes taurine and ginseng for their stimulant effect (Anheuser-Busch just promotes ginseng), when in fact there is no adequate substantiation that either has a stimulant effect.

        (4)    There is a physiological effect – and marketing message – that consuming alcohol and caffeine together allows one to drink more alcohol without feeling as intoxicated as would otherwise be the case.

Of course, these two scofflaws have already ignored the positions of many state attorneys general, and appear wholly willing to ignore federal law as well, so we are none too sanguine that these two will want to do anything except continuing to sell these dangerous products.

So, what do we know now about these alcospeed and these companies?

•    These companies are intentionally spiking their alcoholic drinks with stimulants.

•    These companies are intentionally promoting these drink as speed with a buzz, thus “alcospeed.”

•    These companies are intentionally flavoring these drinks to make them attractive to very young drinkers. When we taste-tested these drinks, the taste reminded us of Orange Kool-Aid and children’s cough syrup. Not exactly a fine wine or single malt scotch. Not even beer—this is candy in a can with alcohol and stimulants thrown into the mix.

In fact, short of decorating these cans with Hannah Montana or Spiderman, it’s hard to see how you could do a better job of marketing alcospeed to young people than Anheuser-Busch and Miller are doing.

This is a recipe for disaster and the companies should be held accountable.

We expect that the companies’ defense will be similar to the tobacco companies, when they were accused of marketing to kids with cartoon characters and the like:

Deny. Deny. Deny.

They’ll deny that they are marketing to kids.

They’ll deny that kids are attracted to sweet fruity drinks.

They’ll deny that these drinks pose any special harm to drinkers.

These denials will come from the companies who brought us things like Spuds McKenzie, the favorite alcoholic dog of my daughter when she was a kid.

It’s like putting a pot of honey under a tree and then professing to be shocked, sir, shocked that Winnie the Pooh shows up.

Marketing to kids is what drew our attention, but when we looked at the content of these drinks, we saw that they must be pulled off the market entirely—they aren’t safe for kids of any age.

And these caffeine cocktails in a can are illegal and adulterated products as well—not one of the added ingredients (caffeine, guarana—just another form of caffeine, taurine, and ginseng) has been FDA approved as safe for use in alcoholic beverages.

        •    Caffeine is only approved as an additive to cola-type beverages in concentrations no greater than 0.02 percent. 21 CFR 182.1180.

        •    Guarana is only approved as an additive to be used as a flavoring or adjuvant, in the minimum quantity required to produce the intended physical or technical flavoring effect. 21 C.F.R. 172.510.

        •    Taurine is not approved as an additive to human food, but only to chicken feed. 21 C.F.R. 573.980.

        •    Ginseng is not an approved food additive at all.

In fact, we have not been able to find any research that tests the safety of this witches’ brew of stimulants and depressants.

We are seeing new research on the very real risks behind alcospeed that present a false sense of alertness, as these drinks sure do.

So, and as we explain in much more detail in the letters we’re sending these companies, these alcospeed drinks must come off the market. We’re willing to talk first, but Miller and Anheuser-Busch need to understand that we will see them either at the negotiating table or in court.

These companies must be stopped. They should be ashamed of themselves, but since they have no shame, they must be stopped.

Comments

[Supremacy Claus]

Steve: What standing do you have?

[DngrMse]

Sigh....it's bad enough that it's a full time job to keep the government from protecting me from my own actions....but also having to contend with a for profit group of greedy lawyers suggest it's a losing battle. Might as well be barking at the moon though, as I don't think there's anything on this earth that can lure a lawyer away from the promise of money. Unless it's more money.

Damn bloodsuckers.

[Stephen Gardner]

Responses to comments:

Supremacy Claus (nice name!):

Standing is conferred three ways. Under laws such as DC's consumer protection statute, there is representational standing. Under most state laws, CSPI would have both associational standing to sue on behalf of its members and institutional standing to sue because its own efforts to curb underage drinking are undercut by the beer companies making products that primarily appeal to underage drinkers.

DngrMse:

Sigh....it's bad enough that it's a full-time job to persuade the government to do its job to protect underage drinkers....but also having to contend with people who post comments without having done their homework is just sad. The Center for Science in the Public Interest is a non-profit outfit--and we have several lawyers in addition to myself who were lured away from the promise of money in order to protect the public. Also, unless DngrMse is under 21, we are not trying to protect him from himself--that too would appear to be a full-time job.

[Supremacy Claus]

Steve: Thanks.

How many children belong to your association? How many drank the offending beverages? What damage did they suffer? Is the reduction of underage drinking part of your mission prior to this claim?

You may face these questions from the defense.

[ruralcounsel]

This is idiotic.

A perfect example of what is wrong with tort law, social coercive utopians, and misguided money-grubbing attorneys. So when is someone going to sue you guys and hold you accountable for the economic and social damages you're doing? When is a sensible judge going to sanction you for this kind of unreasonable litigation. Where is FRCP Rule 11 when we need it? You guys need to have your licenses suspended for a couple of years ... where's the Ethics board?

As a parent, I don't need your help in protecting my children from products they can't legally purchase. The companies you mention are in the business of selling beverages that taste good and have a certain pleasing effect on humans, and just because children are humans doesn't mean they are being "targeted"

Guess what, the world is full of stuff that is bad for children, bad for adults,... but it's none of your business to interfere in non-coerced consensual transactions. And I reject the entire concept that advertising is so devious that it obsolves me of responsibility for making my own choices.

... what kind of nanny-state, prudish, holier-than thou, self-righteous, ... oh never mind, I'm sure this is just wasted on the likes of you. Like I said, I hope you end up disbarred.

[Joe]

You complain in the same breath that "there is no adequate substantiation that either has a stimulant effect" and "this is candy in a can with alcohol and stimulants thrown into the mix".

The beliefs and actions of your organization are ridiculous - as above comments that ridicule you tend to prove.

have you conducted any studies to find out whether or not adults prefer sweet, tasty quaffable beverages to "a fine wine or single malt scotch"

You should. You will find that adults consume sweet tasty quaffable beverages in far greater quantities than either of these beverages that you position as 'adult'.

I know ad hominem arguments have no strength, but you folks seem moronic.

[Matthew]

It's typical that when someone claiming to be speaking in "the public interest" says that their efforts are "for the children", we can accurately assume that they're using those phrases in place of a rational, cohesive argument, and that their real goals are power, control, the abolition of a specific freedom, and often personal profit. This is no exception. Thank you for proving the rule.

Your tactics, attitude and approach to what you perceive to be societal ills are offensive, intrusive and shameful. There are a great many things that make me proud to be an American, but ridiculous nanny state lawsuits are the thing that make me most ashamed. And that includes our current president's ridculous war.

I hope you learn the meaning of the word "shame" at some point in your life, Mr. Gardner. You clearly don't get the concept at this time.

[DngrMse]

Stephen Gardner:

Sigh....it's bad enough that it's a full-time job to persuade the government to do its job to protect underage drinkers....but also having to contend with people who post comments without having done their homework is just sad. The Center for Science in the Public Interest is a non-profit outfit--and we have several lawyers in addition to myself who were lured away from the promise of money in order to protect the public. Also, unless DngrMse is under 21, we are not trying to protect him from himself--that too would appear to be a full-time job.

What an absolute bunch of horse hockey. CPSI may bill itself as 'non profit', but I doubt it's many volunteer lawyers are working their litigious fingers to the bone without some 'compensation'...in addition to the pure pleasure that forcing President Nanny-Pants to wipe the bottoms of this nation's "underage drinkers" might give. There's money, and there's lawyers. That's all anyone needs to connect the dots in this story.

[Nked]

"In fact, short of decorating these cans with Hannah Montana or Spiderman, it’s hard to see how you could do a better job of marketing alcospeed to young people than Anheuser-Busch and Miller are doing."

What? You mean short of directing advertising to kids, they are advertising to kids? I also like how you brought up Spuds Mckenzie and alluded to Joe Camel, though neither of these companies have ad campaigns that are remotely similar. Oh right, it tastes sweet . . .therefore it MUST be for kids. What adult in their right mind would choose a drink that tastes like Orange Kool-aid rather than a single malt scotch? We all know how delicious that is. I also love this comment to DngrMse:

"Sigh....it's bad enough that it's a full-time job to persuade the government to do its job to protect underage drinkers . . ."

I'll give you the benefit of the doubt and assume you meant "prevent underage drinking" not "protect underage drinkers." Even so, it's not the governments job to force companies to make certain products and ban them from making others. The act of selling alcohol to minors is illegal, not producing an alcoholic drink minors may or may not want. Similarly, the responsibility of keeping a minor from drinking lies with the parents, not everybody else.

I enjoyed reading the comments; they did an excellent job of ripping your argument to threads. I hope you get laughed out of court.

[Supremacy Claus]

Rural: What you propose is impossible. The criminal cult enterprise that is the lawyer profession has dealt itself immunities from the legal malpractice of their weak claims.

They may sue anyone, generating massive defense costs, and pressures to settle. A small island of accountability was removed when Rule 11 got gutted, because it worked too well.

The victims of lawyer malpractice and carelessness have no recourse, whatsoever. This unjust lawyer privilege violates all state constitution articles granting access to the court, and the Fourteenth Amendment procedural due process right to a fair hearing. The lawyer self-dealt immunity is totally lawless, and maintained only by out of control pro-lawyer rent seeking biased judges. No lawyer should sit on any bench, because only the interest of the criminal cult has any chance in court.

In fairness to Steve, he has not yet banned such loving lawyer criticism. The right wing, corporatist stooge hypocrites cult indoctrinated cult members have zero tolerance for such loving criticism of the profession, and advocacy of making all lawyers subject to legal malpractice claims by adverse third parties. They have banned me. Steve has not, and has taken the time to provide a thoughtful reply, that furthers the legal debate, rather than shuts it down. I hope we all appreciate the grace and fairness of our host here.

[Tort Reform]

The English language has a noun that is typically used for those that seek to destroy the freedom and freedom of choice of others. That word is Tyrant. History is awash with the words of these high and mighty sounding hypocrites, "for the common good," and nowadays, "for the children".

The fact is that the greedy, sleazy lawyers that bring these types of nanny-state lawsuits have manipulated the system. There is no justice in our courts anymore, civil or criminal. You can bet that these lawsuits contain the terms that "reasonable" attorney fees will be compensated to the plaintiffs. "Reasonable" to them is hundreds or thousands of dollars an hour. See the tobacco settlement for more info.

The only way to deal with tyrants is to overthrow them. Fight, pass tort reform on the state level usually by citizen initiative. Write op eds calling attention to their evil ways. If that doesn't work, outright defy them.

Lobby for a loser pays (including attorneys) civil court system. Write nasty letters to the organizations of greedy, sleazy, tort lawyers, but be careful to avoid calling anyone by name so that libel and slander cases cannot be brought against you. Find out who funds these organizations like Public Citizen and CSPI and boycott their products and let them know why. This is an all out war and our freedom and freedom of choice is at stake.

Remember, these people, like all tyrants, have nothing but contempt for the average person and their freedom. They are not out there to help you and I. It is time to go on the offensive and show what contempt that we have for them.

[Bartleby]

Why is it when "it's for protection of the children" do many sane people lose their minds. What we don't need are more inane laws intended to protect the children at the loss of rights of adults. Good grief, CSPI is one of the largest nanny-do-gooder organizations (non-priofit in name only) on the planet whose only merit is to try and stop people from enjoying life.

Ever hear of Boones Farm COuntry Quencher, man that was some good stuff when was in high-school back in the late 70's and early 80's. My what have we become, I surprised we all survived this long without the lawyers and groups such as CSPI protecting us from ourselves.

God I wish you people would just go away and leave me alone. I neither want, nor need your help and would prefer you keep your nose out of the things I do. And in return I promise to leave you alone to your vices, whatever that may be.

[Supremacy Claus]

Tort Reform: The lawyers are out of control, and lawless. They legislate from the bench in violation of Articles granting that power to the legislatures.

The judges have no competence to set industrial policy by granting immunities to themselves, and holding productive sectors liable. Nor do they have any constitutional permission to do so. Their sole legitimacy comes from Army Airborne. Try to disobey a judge, and the armed Federal marshal thugs he sends to help you comply. They have lawlessly granted themselves immunity. There is no recourse inside the airtight, rigged lawyer system.

I would like to see national databases of these internal lawyer traitors and their enforcers. Appellate judges must be removed by a courageous Executive. Then all product and service providers refuse to serve them. Boycott these traitors into the Stone Age. Pass lawyer control laws that exclude all law school trained people from all benches, all legislative seats, and all responsible Executive policy positions. Do so as laws now exclude felons.

[Les]

Here's a news flash, adults like fruity-flavored drinks to. If they didn't we'd never have things like fuzzy navels or daiquiris.

Also, I assume your comparison to tobacco companies refers to Joe Camel? How are ads depicting humanoid camels (not cartoon camels, there is a difference.) engaging in adult behavior in adult contexts supposed to be 'marketing to children'? Just because you are (presumably) an adult and don't like such art dosn't make it exclusively kid's material.

[ginsocal]

Liberal fascism rears its ugly head yet again! I'm no longer amazed by the idiocy that these leeches put out. CSPI doesn't have anything to do with "science," nor does it have the public interest in mind. They exist to implement nanny-state regulations that would never pass legislative muster, and line their own bottomless pockets. We need to make these people go away.