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

[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.

[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.

[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.

[Steve 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.

[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.

[Supremacy Claus]

Steve: What standing do you have?