LAS VEGAS — Food companies adding caffeine to such products as snacks, gum or waffles without conducting an appropriate generally recognized as safe (GRAS) assessment may find themselves in trouble with the Food and Drug Administration, said Justin J. Prochnow of the law firm Greenberg Traurig, L.L.P., Denver.
Mr. Prochnow made his comments during an education session at the SupplySide West trade show on Nov. 14.
“Caffeine is GRAS for a very specific purpose — when it is used in cola-type beverages at 200 parts per million,” he said. “There is a variance of what a cola beverage may be.
“The regulation does not apply to other products and companies have to do their own GRAS assessment,” he said. “So, if you are putting caffeine in cookies or popcorn, you have to show it is GRAS. I would venture to say most companies are not doing that GRAS report.”
There have been calls by consumer groups and members of Congress for the F.D.A. to further regulate caffeine, but Mr. Prochnow said the agency doesn’t need any new regulations.
“They just need to ask people putting caffeine in their products if they have done a GRAS report,” he said.
Mr. Prochnow added that companies using ingredients of which caffeine is a constituent, such as coffee or yerba mate, do not need to conduct a GRAS assessment.
Looking ahead, he said the focus by regulators and members of Congress is going to be on marketing food and beverage products with added caffeine to children and other at-risk populations.
“The concern is this new marketplace,” Mr. Prochnow said. “It was easy to gauge how much caffeine you consumed from coffees and sodas, but when you look at waffles and snacks, all of a sudden the amount of caffeine can go up.”
In his opinion, Mr. Prochnow said mandatory caffeine disclosures on labels are likely on the horizon.“Many companies are already doing this, and some are using it as a positive,” he said. “If you are using caffeine, you should probably do it now if you are not.”