A New York Times report that the Food and Drug Administration is investigating the popular energy concoction “5-Hour Energy” in the deaths of 13 people, comes after a strong lobbying effort appears to have stymied congressional efforts to regulate highly caffeinated beverages.

The energy drink industry falls into a regulatory crack between soft drink industries and, oddly enough, the food supplement industry. Some of the makers of these drinks claim that they are not food but a dietary supplement. That classification allows them to avoid listing ingredients on their products.

"These energy drinks, do not have to abide by nutrition facts labels," said consumer advocate Michele Simon of EatDrinkPolitics. "Which is pure insanity because these are soft drinks." She added, however, that "not all brands engage in this trickery.“

Last April, after the death of a 14-year-old girl suspected to be linked to energy drinks, Senate Deputy Democratic Leader Dick Durbin, D-Ill.,  called on the FDA to investigate, and introduced legislation that would extend FDA nutrition labeling requirements to such beverages. Since then he's partnered with Sen. Richard Blumenthal, D-Conn., in a series of letters pushing the FDA to "assert its authority to regulate the level of caffeine in energy drinks marketed as beverages."

Meanwhile, beverage companies have been busy lobbying. Herbalife, PepsiCo, and the United Natural Products Alliance are some of the industry groups that have reported lobbying on the Durbin's bill, which has also drawn the attention of consumer groups and doctors' groups, which support it.

When Durbin tried to bring up the bill as an amendment to another piece of legislation last May, it was shot down by a vote of 77 to 20.

While Hansen's Natural, Monster's parent company, and Living Essentials, the parent of 5-Hour Energy, do not report any federal lobbying, similar groups and companies have been working to influence Congress and the FDA. For instance, the Natural Products Association lobbies on supplement regulation with Congress and the FDA, according to Senate Lobbying Reports.  

Pharmavite, part of the supplement company, Nature Made, has lobbied on “Senator Durbin's inquiries on caffeine and supplement labeling” according to its official lobbying reports. The company's website features an “energy health” section.

The current regulatory environment has left it up to drink manufacturers to decide what, and how much to disclose. “They [energy drink makers] decided among themselves that they should be regulated as a supplement– giving consumers the impression that this is a drug. We have no idea of how much caffeine is in there," said EatDrinkPolitics' Simon. "The industry has skirted any attempt to get caffeine labeled.”

A review of energy brands in a DC convince store highlighted the inconsistent labelling. The brands Monster, Rockstar used the term “Supplement Facts” while Starbucks, Amp Energy and Red Bull used the term “Nutritional Facts.” Red Bull had additional text above with claims like “increases concentration and stamina” and “stimulates the metabolism.”

Consumer Reports found that the amount of caffeine in energy drinks varied widely by brand an eight-ounce drink can contain between 50 milligrams to 145 mg. Coffee would be about 100 mg.

In a National Institute of Health Article warned of the possible dangers of excessive caffeine consumption, “Although healthy people can tolerate caffeine in moderation, heavy caffeine consumption, such as drinking energy drinks, has been associated with serious consequences such as seizures, mania, stroke, and sudden death.”

According to Living Essentials press release, the product is a supplement marketed to adults and “Living Essentials, LLC is unaware of any deaths proven to have been caused by the consumption of 5-Hour ENERGY®."

(Photo by Lindsay Young)

Durbin-Blumenthal Letter to FDA Re Energy Drinks 9-11-2012