Advocacy Group's Persistence Spurs Mich. Ban on Alcoholic Energy Drinks

The Michigan Liquor Control Commission's sudden and unexpected decision this month to ban sales of beverages combining alcohol and stimulants is being credited to a convergence of factors: the persistent pleas from advocates, led by the group Michigan Alcohol Policy Promoting Health and Safety (MAP), and a troubling local crime.

The commission's 2-1 vote to order removal of high-alcohol and caffeine products such as Four Loko and Joose from retailers' shelves occurred just weeks after reports that a 14-year-old girl, who had been drinking alcoholic energy beverages with friends, was sexually assaulted.

“This was the final straw. Now we knew that it’s home, it’s here,” said Michigan Liquor Control Commission Chairperson Nida R. Samona, who with Commissioner Patrick Gagliardi voted in favor of the ban.

Michigan's story

A flurry of recent media reports has focused attention on emergency room visits following youths' consumption of alcoholic energy drinks — a subset of the flavored malt beverages known as alcopops — and subsequent bans on several college campuses. But in Michigan, the effort to convince regulators to restrict sales of products combining alcohol and stimulants actually goes back to 2008.

At that time, the Michigan Coalition to Reduce Underage Drinking was taking the lead on the issue, but concerns among its funders about the scope of its advocacy activity caused it to step back. In early 2009, MAP would be formed and would assume the primary role in asking the Liquor Control Commission to examine alcopops more closely. MAP's mission is to advocate for laws and policies that reduce illegal and harmful use of alcohol.

“In the past it pretty much had been beverage industry people who came before the commission,” said MAP executive director Mike Tobias. “The commission didn’t know who we were.”

It became apparent early on that the commission did not want to address the most prominent category of alcopops: beverages such as Mike’s Hard Lemonade that have distilled spirit additives and usually come in bottles with about a 4 to 5 percent alcohol content. So MAP’s attention turned to the higher-alcohol products that also contain stimulants, usually packaged in brightly colored 23-ounce cans with an alcohol content equivalent to four or five beers.

“I applaud these groups; they have really been relentless,” said Samona, referring to MAP’s multiple appearances before the commission since last year.

Tobias said months passed as advocates awaited some direction from the commission on alcoholic energy drinks, until the panel voted in September to review the products’ packaging and labeling to determine if it was detrimental to public safety. MAP believed it had won a partial victory and was ready to set its sights elsewhere, such as perhaps seeking state legislative action in 2011. Then news of the sexual assault involving the 14-year-old spread throughout the state, and the game changed.

“We decided, 'Let's take one more run at this,'” Tobias said.

The 2-1 vote this month gives manufacturers 30 days to remove alcoholic energy drinks from store shelves. Tobias expects the products that have been in stores around the time of the vote will remain there for the time being. There are indications that manufacturers may seek to challenge the ban in court.

“I think this is something we are happy to defend,” Samona said.

MAP believes that the staged approach to regulating the products, in which an outright ban wasn’t on the table until later in the discussions, played an important role in the successful outcome. At one point in the process back in the spring, Samona asked MAP and Phusion Projects, the maker of Four Loko, to work together to seek common ground, but Tobias said it became apparent from the start that the two entities had completely different aims.

Deciding factors

James F. Mosher, J.D., an alcohol policy specialist who has shed light on the marketing practices of companies promoting alcoholic energy drinks, believes the decision by major brewers such as Anheuser-Busch to leave the energy drink market gave states the opening to restrict sales of the products.

“This is an easier lift because Anheuser-Busch and Miller are on the sidelines,” said Mosher, senior policy adviser at The CDM Group, Inc.

Michigan is not the first state to achieve an effective ban on the products mixing alcohol with caffeine or other stimulants such as guarana or taurine. In Oklahoma, when the product agent for Phusion Products’ Four Loko indicated it no longer would do business in the state, regulators stated they would allow no other agents to come in, Mosher said. In Utah and Montana, the products have been reclassified as distilled spirits, subjecting them to higher taxation and effectively serving to remove them from the market.

Yet other states, including New York and Ohio, have argued that they are powerless to restrict sales of the products because they are required by statute to accept any product that has received the go-ahead from the federal Alcohol and Tobacco Tax and Trade Bureau (TTB), Mosher said.

A drawn-out review of alcoholic energy drinks by the Food and Drug Administration (FDA) also is being cited as an explanation for states’ recent activity. Commissioner Samona said she had expected to see something released by the federal agency by summer, but recent reports both in Michigan and elsewhere necessitate action now, in advance of FDA action.

“If anything comes back that gives us any more information, we can certainly revisit this,” Samona said.

Some advocates consider the mere presence in the market of drinks such as Four Loko — often called “blackout in a can” –an indication of poor regulatory oversight on the front end. Asked whether her panel dropped the ball in allowing these products to be sold in the first place, Samona said, “I don't know if we knew everything about them until we started to read the articles.” She added that the commission consistently tries to strike a balance between not stifling the free market and protecting the public welfare.