New Jersey Criminal Law Article By Jeffrey Hark, Esq.

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Amid speculation that the Food and Drug Administration would be issuing new regulations regarding caffeinated liquor and malt beverages in response to recent deaths involving these types of beverages, the FDA instead issued warning letters on November 17, 2010 to four makers of caffeinated alcoholic beverages.  The FDA warned the four companies that the caffeine added to their malt alcoholic beverages is an "unsafe food additive" and said that further action, including seizure of their products, is possible under federal law.

The FDA's action follows a scientific review by the Agency which commenced in November 2009 when the FDA sent a request to manufacturers to provide information on the safety of adding caffeine to their products.  The FDA also performed its own independent laboratory analysis of these products and found no support for the claim that the "addition of caffeine to alcoholic beverages are 'generally recognized as safe,' which is the legal standard." Experts have raised concerns that caffeine can mask some of the sensory cues individuals might normally rely on to determine their level of intoxication.  The FDA said peer-reviewed studies suggest that the consumption of beverages containing added caffeine and alcohol is associated with risky behaviors that may lead to hazardous and life-threatening situations.