WASHINGTON — Congressman Edward J. Markey of Massachusetts, senior member of the Energy and Commerce Committee, sent a letter late last month to the Federal Trade Commission (F.T.C.) requesting an investigation of advertising claims made by energy drinks such as 5-hour Energy, Monster Energy and Rockstar Energy. In a Nov. 30 letter Mr. Markey said the claims on the drinks may be in violation of the Federal Trade Commission Act as “unfair or deceptive.”
In making his case, Mr. Markey cited a recent story in The New York Times in which 13 deaths allegedly have been linked to 5-hour Energy. He added that some of the claims made by energy drinks, such as they will “fix the feeling of tired,” “allow you to do more,” make the consumer “sharper and more alert” and provide “hours and hours of energy,” have not been substantiated by the Food and Drug Administration.
“The advertising claims made by energy drink manufacturers are particularly alarming in light of the increase in advertisements targeted primarily to children and teenagers,” Mr. Markey said. “Accordingly, I believe an investigation of the claims made by these companies would fall within the Federal Trade Commission’s mandate as stipulated in Section 5 of the Federal Trade Commission Act with respect to protecting Americans from ‘unfair or deceptive acts or practices.’”
Mr. Markey noted that the F.T.C. in the past has successfully investigated and took action against claims made by alcohol-containing energy drinks found to be engaging in unsafe, deceptive marketing claims.
“I believe an investigation into energy drinks that do not contain alcohol and are often targeted at children may be warranted at this time,” he said.
Mr. Markey requested the F.T.C.’s response to three questions by Dec. 14. The questions are:
• Does the F.T.C. believe that the varied health, function and safety claims made by manufacturers of energy supplements constitutes a violation of Section 5 of the F.T.C.A., which outlaws unfair or deceptive trade acts or practices? If yes, how? If not, why not?
• If the commission does believe that such trade practices may constitute potential violations of the Act, what actions, if any, is the F.T.C. taking in response to this matter?
• Please describe the manner in which the F.T.C. coordinates its efforts with the F.D.A. or other federal agencies that share jurisdiction or responsibilities in this area. To the extent that such coordination efforts are formalized, please also provide copies of any relevant memoranda of understanding or other similar documents.
Mr. Markey’s letter to the F.T.C. came about a week after the publication of a letter sent by the F.D.A. to Senators Richard J. Durbin of Illinois and Richard Blumenthal of Connecticut. In the letter, the F.D.A. acknowledged that energy drinks containing caffeine and other ingredients are a relatively new class of products, and although the products have the potential to raise safety or regulatory issues, there is a long history of safe use of other caffeine-containing products in the United States.“F.D.A. is aware, however, that new products and patterns of use require us to remain vigilant, and we are working to strengthen our understanding of the nature of ‘energy drinks’ and any casual risks to health,” Michele Mital, acting associate commissioner for legislation at the F.D.A., wrote in a letter dated Nov. 21. “In particular, we are looking at whether products that may be safe for most individuals under labeled-use conditions may pose significant risks, arising from direct toxic effects, when the products are consumed in excess or by vulnerable groups, including young people and those with pre-existing cardiac or other conditions. This review includes investigating as fully as possible reported deaths and other serious adverse events that these reporting parties have associated with energy drinks.”