Energy products remain an issue for F.D.A.

by Keith Nunes
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LAS VEGAS – Despite a spate of negative publicity, the energy beverage market remains on the upswing. Its strong showing has prompted manufacturers of products in other food categories to consider adding caffeine in an effort to capture a share of what is proving to be a very robust functional food category.

But speakers at a session about the energy market at the SupplySide West trade show in Las Vegas on Oct. 8 noted the Food and Drug Administration may take steps to address the issue of added caffeine.

Justin Prochnow of the Greenberg Traurig law firm, Denver, said it is a “myth” that there is a limitation on the addition of caffeine above 71 mg per 12 fluid ozs.

“This does not mean you can't use caffeine at higher amounts,” he said. “It just means you need to justify its use. You should have something in your files to indicate what your evidence is that the use is GRAS (generally recognized as safe).”

Mr. Prochnow said the issue of added caffeine has died down in 2014, but manufacturers should not lose sight of the fact it is still a concern for the Food and Drug Administration.

“To me, the F.D.A.’s biggest concern is the caffeine added to all of these other products,” he said. “When you have caffeine in jerky, waffles, Cracker Jacks and hot sauce, all of a sudden it becomes more difficult for consumers to track how much they are consuming.”

Mr. Prochnow argued F.D.A. regulations currently exist that allow the agency to address the issue.

“We are starting to see the F.D.A. more actively investigate the use of caffeine in products other than beverages,” he said. “There were letters sent to companies asking what evidence the use is GRAS in the products.”

Looking ahead, Mr. Prochnow said he doesn’t see the F.D.A. setting limits on caffeine usage, but the agency may call for mandatory disclosure or warning labels on products.

Data presented by Ewa Hudson, director of health and wellness for Euromonitor International, London, forecast the global market for energy beverages will experience a 7.4% compound annual growth rate between 2013-2018. Such a growth forecast gets attention, but anyone considering trying to tap the market by selling food products with added caffeine must know that how the F.D.A. will address the market remains unknown.
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