Four Loko a.k.a. Blackout in a Can: The Federal Regulation of Caffeinated Alcoholic Beverages

Abstract

Caffeinated alcoholic beverages (“CABs”) such as “Four Loko” exploded onto the drinking scene in recent years, creating a youth culture fad and sparking concern and even outrage among politicians, the media, law enforcement officials, and health professionals. Part I of this article provides an overview of the effects of CAB consumption, and federal agencies’ steps toward CAB regulation. Part II explains the jurisdictional overlap of the Food and Drug Administration (“FDA”), the Federal Trade Commission (“FTC”), and the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) with respect to alcoholic beverage regulation, arguing that the government’s reaction to the apparent health risks of CABs demonstrated notable interagency coordination and cooperation. Part III canvasses the extent to which CAB manufacturers may be exposed to civil liability in light of deaths and hospitalizations associated with CAB consumption, hypothesizing that CAB manufacturers may still face liability even after the removal of caffeine from their products. Part IV addresses the marketing issues related to CAB advertising, and Parts V and VI examine the arguments that FDA regulation of CABs is arbitrary and paternalistic, respectively. The article concludes in Part VII by presenting alternative solutions to an outright ban of CABs.