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Debate and Legislation Surrounding Energy Drinks Ensues

Dietary Supplements,FDA,Marketing and Advertising,Regulatory

Energy drinks continue to make national and local headlines as manufacturers change marketing the products from dietary supplements to beverages and local governments pass new regulations.

After 10 years of marketing their energy drinks as dietary supplements, Monster Beverage changed the marketing of its energy drinks from dietary supplements to beverages earlier this month.  In a story reported in the New York Times, the company said it made this decision for two reasons.  “One was to stop what [Michael Sitrick, a spokesman for Monster] described as “misguided criticism” that the company was selling its energy drinks as dietary supplements because of the belief that such products were more lightly regulated than beverages. Another consideration, he said, was that consumers can use government-subsidized food stamps to buy beverages.”

Are energy drinks dietary supplements or conventional foods?  What is the correct way to label your product?    The answer to this question largely depends on the ingredients in the energy drink.  Currently, some manufacturers label their products as dietary supplements and others label them as foods.  According to FDA, the products can be labeled either way, but the requirements for dietary supplements and foods vary.  For a product to be labeled as a food, the ingredients in the drink must be approved food additives and/or generally recognized as safe (“GRAS”).  In contrast, for a product to be a labeled a dietary supplement it must contain statutorily defined dietary ingredients.  Other differences between foods and dietary supplements include labeling and adverse event reporting requirements.  Dietary supplements must be labeled with “Supplement Facts” and their manufacturers and other responsible persons are subject to the adverse event reporting requirements.  Conventional foods use the “Nutrition Facts” in their labeling and are not required to submit serious adverse event reports to FDA.  FDA provided guidance on this issue in 2009, and is likely to provide additional guidance in the near future to help manufacturers determine what qualifies energy drinks as foods versus dietary supplements.

On the local front, Suffolk County (New York) Legislature recently passed three bills which will largely impact energy drink manufacturers selling their products in the county.  According to Newsday, “A ban on the sale of energy drinks at county parks and beaches passed 11-4, with several abstentions; a ban on marketing of the drinks to minors via coupons and free-sample mailings passed 16-0; and a measure that encourages local students to submit videos about the alleged health dangers of the drinks was approved 14-1.”

As always, if you are in need of legal counsel when it comes to how to market your energy drink product and comply with current federal, state and local regulations, call us anytime at 516-294-0300.

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