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Monday, December 5, 2011

Caffeinated Alcoholic Drinks & the Law (just in time for the Holidays?)

By Thomas L. Hafemeister, J.D., Ph.D. Assoc. Professor, University of Virginia School of Law

On July 18, 2008, in Largo (Pinellas County), Florida, at about 2 a.m., a motorcycle driven by John Prado, 21, collided with a pickup truck, the driver of which had run a stop sign.  On the back of the motorcycle was Heather Lynn Cook, 20.  Prado was killed instantly, while Cook was thrown from the motorcycle and badly injured, with her leg ultimately amputated.  A police officer at the scene of the crash said cans of Icehouse beer came tumbling out of the pickup onto the street.  The driver of the pickup was subsequently arrested and charged with DUI manslaughter.  It appears the driver ultimately was convicted of a felony and given a prison sentence.  An account of the accident and subsequent criminal proceedings involving the driver of the pickup are here, while access to the germane court records can be gained here.   

However, apparently the driver of the pickup was not the only person involved in this accident who had previously been drinking.  Cook filed a related suit against the Estate of Prado and Millercoors, LLC, which manufactured, marketed, and sold “Sparks,” an alcoholic beverage containing caffeine and other stimulants.  [For a brief history of Sparks, its unique marketing history, and its cult following prior to its purchase by Millercoors, see here.]  

Cook argued that alcoholic beverages such as Sparks contained stimulants that are “uniquely dangerous” and appeal to younger drinkers.  Further, while the addition of caffeine enables one to drink more alcohol without feeling as intoxicated as one normally would, the stimulants do not reduce alcohol’s negative effects on motor skills and reaction times.  She asserted that consumers of these beverages are more likely to “engage in dangerous behavior such as driving,” and that her companion, Mr. Prado, after consuming Sparks, neither felt nor appeared to be impaired, although his blood alcohol level was 0.10 at the time of the crash.  [In Florida, at 0.08 the law presumes impairment, see here.] 

Cook’s complaint asserted that: (1) the combination of alcohol and stimulants created a latent inherent danger and MillerCoors failed to warn Mr. Prado of that inherent danger; (2) the addition of stimulants to the alcoholic beverage constituted a design defect; and (3) MillerCoors negligently manufactured Sparks, knowing that it was unreasonably dangerous and that inexperienced drinkers would be more likely to drink to excess due to the addition of stimulants. 

MillerCoors countered that there is no cause of action against a manufacturer of alcoholic beverages for injuries resulting from their consumption because the effects of alcohol consumption are well known.  Cook responded that these holdings apply to “conventional” alcoholic beverages, not to an alcoholic beverage mixed with stimulants designed to suppress the consumer’s awareness of alcohol’s well-known effects.

Just over a month ago, a federal district court in Florida granted Millercoors’ motion to dismiss Cook's lawsuit. 

With regard to the failure to warn claim, the court found that such a duty only arises with regard to dangers of which consumers are unaware, not to dangers which are obvious or commonly known.  The court determined that Cook had not alleged that Prado was unaware that he was drinking alcohol and thus it must be assumed that he did so with knowledge of its potential effects.  The court added that other courts have declined to impose a duty to warn on manufacturers of alcoholic beverages based upon a plaintiff’s perception or understanding of the risks involved with a particular product, citing rulings from Texas (regarding a belief that “Lite” beer was less intoxicating) and Tennessee (addressing Everclear grain alcohol), as they have noted the difficulty of devising a warning regarding the particular tolerance of an individual consumer. 

The court refused to be swayed by Cook’s evidence that state attorneys general and experts have expressed concern about the marketing and use of alcoholic energy drinks by young people, countering that she had not cited a case imposing related liability and that this was a policy question better left to the elected branches, not the courts. 

For the court's treatment of this and the other two counts targeting MillerCoors, as well as Cook's auto negligence claim against Prado, see here.  

It should be noted that MillerCoors, under pressure from more than a dozen state attorneys general, agreed in December 2008 to remove the caffeine and other stimulants from these drinks (see here, here, here, and here).  However, such products continue to be distributed by other entities (for a November 2009 list compiled by the FDA of manufacturers of caffeinated alcoholic beverages, see here).

Also, for a recent article in Scientific American addressing the dangers of caffeinated alcoholic energy drinks, as well as a discussion of the prohibition of their sale in Michigan and Oklahoma, see here and here.  For an article describing the Oklahoma ban, see here

For a posting containing the concerns of the FDA regarding alcoholic beverages with added caffeine, as well as its November 2010 warning letters to four companies that make these beverages, see here.  For a related Fact Sheet published by the CDC in July of 2010, see here.  For a report that college students who consume energy-drink cocktails are three times more likely than alcohol-only drinkers to leave a bar drunk, see here

Relatedly, the Substance Substance Abuse and Mental Health Services Administration (SAMHSA) recently published a report (Nov. 22, 2011) that documented a sharp increase in the number of emergency department visits involving "energy drinks," with a tenfold increase between 2005 and 2009 (see here).

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