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Proposed Chicago energy drink ban littered with legal errors, lawyer says

By Hank Schultz , 22-Jan-2013
Last updated the 22-Jan-2013 at 19:22 GMT

A proposed ban on energy drinks in Chicago is riddled with factual and legal errors, according to an attorney active in the dietary supplements business.

“The pretext of the bill in just filled with a number of flat-out inaccuracies,” said Justin Prochnow, a shareholder based in the Denver office of law firm Greenberg Traurig.

It’s pretty egregious,” he told FoodNavigator-USA.

The proposed rule would ban the sale of energy drinks, defining them as drinks that have more than 180 mg of caffeine per container and impose $100 to $500 penalties, and is the brainchild alderman Ed Burke, the longest-serving city politician.

“If you are proposing a bill you should at least get your facts straight,” Prochnow said.  “To say energy drinks are unregulated, or to say that people are selling them as supplements to avoid federal regulation . . . of course supplements are regulated by FDA. All energy drinks are regulated. The proposed ban is ridiculous. The text is replete with inaccurate or blatantly false information.

"You may have issues with how they are regulated, but to say that they are not regulated is just flat out not true."

This fuzziness on how different categories of products are regulated means the ban would have no hope of accomplishing its objectives, Prochnow said.  The pretext of the ordinance seems to set up a scenario in which manufacturers are trying to skirt regulation calling their products supplements.

“It shows a lack of understanding of what the law is,” Prochnow said.

 “In effect this ban wouldn’t have any effect on dietary supplements.  This ‘ban’ wouldn’t even ban the main group of products he seems to be concerned about. Beverages and supplements are regulated differently."

Misunderstanding of adverse events

Mentioned in the pretext to the ordinance as part of the need for the ban is an adverse event that formed the basis of a lawsuit against Monster Energy.  It concerned the tragic death of a 14-year-old girl in Maryland who died after drinking two Monster beverages in a 24-hour period.  The lawsuit filed by the girl’s parents does acknowledge the fact that the girl had an underlying genetic disorder can heighten cardiac risk.

“The fact that this girl died and drank Monster is no proof that Monster had anything to do with that event,” Prochnow said. “The FDA has said time and time again that adverse events are not proof of anything."

Mentioning the Monster suit seems tantamount to a scare tactic, Prochnow said.

“It’s text that kind of inflames everyone but when you get down to it does not have any support in proof .

“It surprises me that is a bill like this was actually put to the city.  It does look as if there was not much fact checking done before it was submitted.  I don’t understand why politicians wouldn’t speak to someone like me who actually knows the law,” Prochnow said.

Inaccurate information

Prochnow said it's disappointing the degree to which politicians seem to base their views on what they believe to be the need for more regulation of energy drinks on information gleaned from inaccurate or incomplete reports in the mainstream media.

That seems, though, finally to be changing.  He said the latest salvo in the war on energy drinks fired by Senators Dick Durbin, D-IL and Richard Blumenthal, R-CN hints at  new appreciation of the nuances of the regulations.  The two legislators, along with Rep. Edward Markey, D-MA, recently sent letters to the makers of 14 energy drinks and supplments asking a series of detailed questions about how their products were categorized, among other things.

"Those are the first ones where I thought they really understood the underlying principles," Prochnow said.

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