When Governor Jerry Brown signed SB 39 into law earlier this month, alcohol watchdog groups should have been overjoyed. After all, the new law targets one of the most universally maligned sectors of the alcohol industry — caffeinated beer and malt liquor. Sponsored by state senator Alex Padilla, who represents the San Fernando Valley, the bill codified an earlier federal crackdown on drinks like Four Loko and Joose, which came under fire after being linked to a string of student deaths in 2009 and 2010. The new law also makes California the seventh state to ban caffeinated malt liquor. The wording of the legislation even sidesteps a potential challenge from breweries that make their beers with tea, coffee, and chocolate for the purposes of taste, not stimulation. All told, it should have been a victory for those concerned about dangerous drinking.
But instead, some activists are saying the bill is little more than an empty measure that doesn't go far enough to mitigate the adverse public-health effects of alcohol marketed to young people. "Basically, we view this as a completely lame bill," said Michele Simon, the former research and policy director for Alcohol Justice, a Marin-based industry watchdog group. And James Butler of the Sacramento-based California Council on Alcohol Problems said the legislation leaves gaping loopholes that liquor companies can easily exploit.
For Butler, the primary issue with the bill is it doesn't ban ingredients that may have caffeine-like qualities, including ginseng and taurine — common energy-drink additives whose stimulant properties haven't been scientifically proven — but especially guarana, a South American plant whose seeds contain stimulants twice as strong as caffeine. And, as a result, Butler said, lawmakers "didn't eliminate the potential hazard, in our opinion. We were trying to address the entire product line of energy drinks, but we expect that the industry will simply reformulate them — which, of course, is defeating what our intent was."
Last fall, the US Food and Drug Administration and the Federal Trade Commission sent letters to four companies — the manufacturers of Joose, Sparks, Four Loko, and Tilt — mandating that their products be reformulated without caffeine. But because the federal government only targeted specific drinks, rather than issuing a blanket ban, theoretically, any new company in California could now begin manufacturing a guarana-based drink with only the threat of a letter from the FDA to stop it. Ultimately, Butler said, this leaves liquor companies an opportunity to "conform to the letter of the law — not what we consider to be the intent."
Simon, who holds a degree in public health, said the bill also fails to address what she and her organization believe to be an even bigger threat — supersized, super-sweet drinks marketed to teens, like the reformulated Four Loko and Joose, as well as Blast, which was released after the federal crackdown on caffeinated malt liquor and which never contained caffeine. Many of these drinks come in 23.5-ounce cans rather than the typical 12, and some can contain up to 12 percent alcohol by volume — roughly twice as much as an average beer. This means that a single can of Blast or Joose is about equivalent to 4.7 drinks, as defined by the National Institute on Alcohol Abuse and Alcoholism, and all it takes is one can over the course of two hours for a person to meet the Centers for Disease Control benchmark for binge-drinking. And because Simon believes these drinks — sweet, cheap, colorful, and often marketed through nontraditional advertising avenues like Facebook — appeal disproportionately to teenagers (especially females), she contends that they're particularly insidious: Not only are young drinkers less likely to know their limits, they're statistically more likely to engage in dangerous behavior — driving, risky sex — while drunk.
Simon said many liquor companies are now marketing these drinks — often referred to by those in the industry as "alcopops" — as an alternative to caffeinated malt liquor. And it's clear why: Unlike the old Four Loko, these drinks contain large volumes of alcohol and tend to appeal to younger drinkers — but unlike the old Four Loko, they're completely legal. "The fact that this does nothing to address alcopops is a huge problem," she said. She also added that because the bill only bans beer and malt liquor, it means that caffeine-infused spirits — such as Pink and V2 vodkas — are technically still legal.
According to Simon, Alcohol Justice drew up model legislation that would address all these concerns by banning all flavored malt beverages, caffeinated alcohol products, and drinks that exceed 12 ounces or 6 percent alcohol by volume — guidelines that have been ignored by Padilla and other legislators.
Padilla's staff declined to address Simon's specific concerns; an e-mail from his office said the law is an important step. "These drinks are marketed to youth and are a clear threat to public health and safety," the statement said. "Scientific studies have shown that the added caffeine masks the effects of the high alcohol content, which leads to binge drinking and dangerous behavior."
Even so, Simon and Butler still think the legislation is too narrow to really address the inherent issues. It also provides a glimpse of the alcohol lobby's influence on California lawmakers. "When an alcohol bill passes through the legislature this easily, it's usually a sign," Simon said. "It's a feel-good measure for the state legislature."