Makers of caffeinated energy drinks are squarely in the cross hairs of two senators. But even as Richard J. Durbin of Illinois and Richard Blumenthal of Connecticut finally have the ear of the Food and Drug Administration, 5-Hour Energy continues to be sold right under their noses at a Senate coffee shop as a pick-me-up for congressional staffers and the lobbyists who woo them.
Despite the ubiquity of such energy boosters, the makers of 5-Hour Energy have been caught flat-footed on the lobbying front by Democrats Durbin and Blumenthal as they make an example of them on the Senate floor, demanding stronger regulations of energy drinks amid reports that 18 deaths and more than 100 health incidents have been associated with consumption of the products since 2004.
Companies such as Red Bull North America and Monster Beverage Corp. have relied on trade associations to convince lawmakers that their products are safe. But 5-Hour Energy — the most jacked-up product of them all — does not have a registered lobbyist and has not joined any industry groups. The company seems to have shunned official Washington, relying instead on its omnipresence in stores, aggressive marketing and D.C.’s penchant for late nights.
“We’re just not set up like that here with a government affairs person,” said Elaine Lutz, a spokeswoman for 5-Hour Energy, which is made by the Michigan based-Living Essentials, a private company that reportedly has annual revenue of $1 billion.
In a Nov. 21 response to the two senators released this week, the FDA said it will consider new labeling requirements and health warnings related to such products. “Depending on the outcome of our ongoing review of the safety of ‘energy drinks,’ which includes caffeine alone and in combination with other ingredients, we will take action as needed with respect to the levels of caffeine in these products,” wrote Michele Mital, the acting associate commissioner for legislation at the FDA.
The FDA’s letter, however, took some pressure to elicit. Durbin and Blumenthal sent four letters to the agency in 2012. A Durbin aide said the senators found the original response insufficient, leading to the follow-ups.
Less than a decade ago, the American Herbal Products Association, which represents Monster Beverage Co., lost a battle to protect products containing ephedra. But Michael McGuffin, the group’s president, said caffeine, which is consumed daily by millions of Americans, is different.
“That affects the politics,” he said. “It is highly unlikely that the regulatory approach or the legislative approach to a stimulant that we use every day is going to mirror the stimulant that we don’t.” The AHPA has spent $30,000 lobbying this year.