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‘Blatant’ legal flaws should KO Chicago plan to ban energy drinks: Attorney

By Ben Bouckley+

22-Jan-2013
Last updated on 22-Jan-2013 at 14:59 GMT

High profile US attorney Justin Prochnow tells BeverageDaily.com that a Chicago Alderman’s proposal to ban sales of energy drinks in the city contains ‘blatant misrepresentations of the law’.

The proposed ban on energy drink sales introduced by an Alderman in Chicago contains blatant misrepresentations of the law regarding energy drinks and supplements,” said Prochnow, a shareholder at Denver, Colorado practice Greenberg Traurig, and a beverage industry expert.

“I would hope that this legislation replete with misrepresentations would not stand a chance of passing but nothing surprises me anymore,” Prochnow told BeverageDaily.com.

‘Most powerful Alderman’ supports ban

The proposed amendment to the Municipal Code of Chicago, “regarding banning energy drink distribution with extensive fines and penalties”, is sponsored by Chicago City Council dean Alderman Edward Burke, whom the Chicago Sun Times dubbed ‘Chicago’s most powerful Alderman’ in 2009.

It proposes a blanket ban on sales of ‘energy drinks’ throughout Chicago – and fines of $100-$500 in cases of violation – and defines such beverages as canned or bottled products with a caffeine level equal to or exceeding 180mg per container, where they also contain taurine or guarana.

Burke’s proposed ordinance (a law made by a municipality or local authority), presented on January 17, starts by stating that Red Bull, Rockstar, Monster, Full Throttle, 5-Hour Energy and similar ‘highly caffeinated’ energy drinks are popular with teenagers and young adults.

Not only are such beverages unregulated, the proposal complains, but they are sold alongside soda and fruit juices in a wide array of retail outlets.

Unnamed researchers had warned of, “high levels of caffeine, and warned of dangerous, even life-threatening effects on blood pressure, heart rate and brain function”, the document adds.

Burke’s ordinance states that the Food and Drug Administration had received reports “that link at least five deaths since 2009 to a beverage called ‘Monster Energy’”.

It then mentions the December 2011 death of a 14-year-old from a heart arrhythmia, “that occurred when she drank two ‘Monster Energy drinks over the course of two days”.

As well as failing to “adequately warn of the inherent risks of ingesting concentrated amounts of caffeine”, the ordinance adds that energy drink producers were able to make unsubstantiated claims such as ‘enhances athletic performance’and ‘increases caloric burn and mental sharpness’.

‘At best, unsubstantiated claims…’

But hitting out at the Alderman’s proposed legislation, Prochnow said that it labeled ‘energy drinks’ as unregulated beverages, which the lawyer said was “clearly untrue”.

The introductory text of the proposed legislation also states that firms sold products as dietary supplements to avoid federal regulation, unlike the juice and soda industries. 

“These false statements either show a complete disregard for attempting to learn the facts regarding the regulation of energy drinks and supplements, or evidence of a blatant attempt to inflame emotions in order to try to pass the legislation based on unsupported comments,” Prochnow said.

“Ironically, the text of the legislation also asserts that energy drink companies are able to make unsubstantiated claims, when many of the statements made in this proposed legislation could be called, at best, unsubstantiated claims. 

But everyone knew that the FDA did, in fact, regulate all liquid products intended for human consumption as beverages, liquid supplements or drugs, Prochnow said.

He added: “The introductory text cites a number of other speculative sources, including adverse event reports referencing Monster and the death of the 14 year-old in Maryland. 

“[But] the FDA itself has stated that the existence of adverse event reports is not proof of any link between the product and the actual adverse events,” Prochnow said.

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