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NPA Responds to TINA Concerning Letters to Manufacturers Regarding How Energy Drinks Are Regulated

NPA Responds to TINA Concerning Letters to Manufacturers Regarding How Energy Drinks Are Regulated

by Angela Sabarese | January 16, 2023

The Natural Products Association (NPA) has responded to Truth in Advertising, Inc.’s (TINA’s) and the UConn Rudd Center for Food Policy & Health’s letters to manufacturers of energy drink products regarding concerns about “certain practices and their compliance with Federal Law.” In December, the two companies sent warning letters to over 40 U.S. energy drink companies about their “multifaceted deceptive marketing campaign specifically directed at minors.” They argued that although energy drinks are meant for healthy adults, they are marketed toward children with candy-like flavors, for which energy drinks may not be safe.

NPA’s letter in response, signed by Daniel Fabricant, president and CEO of NPA, stated, “This letter is not in response to a specific letter and is not intended to be comprehensive of all the issues raised, we wanted to take the time to address some of the statements outlined in your letters and explain how energy drink products are regulated and the steps our members take to comply with applicable laws and regulations.”

The letter points out “While the name(s) of the flavors are also present on the PDP, that would not impart the products were candy, or candy-like, as all products are clearly identified on the PDP as containing a given number of fluid ounces. This is important, as the Reference Amounts Customarily Consumed (RACCs) per Eating Occasion established in 21 C.F.R. § 101.12(b) for a beverage are 12 fluid ounces. Therefore, the product wouldn’t be confused as anything other than a beverage under FDA regulations, these facts are all disclosed on the PDP of the label to the consumer in plain sight.

“For the flavors to be even marginally considered misleading, there would need to be either (1) in addition to the presentation of a logo, clear statements comparing it to a specific, popular, and commonly used product, not just a generic image, (i.e. chews like bubble gum) or (2) a product name used without qualifying language about the flavors and without any disclosure of the ingredients to where it could be implied that it was representing another food item. These factors or analysis of how they are misleading are absent from any discussion presented in your letters. Flavors, by themselves, are generally not compelling to mislead a consumer into believing a product is misrepresented. By way of a comparison, the FDA would not conclude that consumers would believe Champagne Cola was Champagne. Flavors commonly appear in all sorts of food and beverage products. As such there are no inconsistent uses that would render the term(s) describing the flavor as associated exclusively with one particular food or beverage product. The use of a flavor term in the product name would be evaluated in the broader context of other factors.”

Fabricant continued, “Most of the companies mentioned in your letters have no corporate experience in marketing candy or confectionary products to children, thus the notion that they are attempting to make their products look like an item of food they have no familiarity in marketing is without a basis in practice. This is important as the statements regarding intention to mislead consumers and appear to market a food appealing to children. What common marketing tactics or statements from the domain of marketing candies and confectionery products did these firms engage in? The letters offer no citation in that regard, which is important because the FDA or FTC could rely on that information when assessing whether the products are misbranded. While there is co-branding, that is with legal agreements to add a flavor to the beverage product, not to co-locate products on the shelves next to each other, where there could possibly be confusion. To my knowledge no candy or any other of the concerned representations of products are co-packaged with any of the products in question.”

The letter concluded, “While we certainly appreciate any group looking out for the well-being of America’s youth, the notion that uniformly across all the firms who received a letter from your organization there’s some sort of collective practice to deceive is what’s false and misleading here. While we aren’t looking to assign malicious intent to your organization’s efforts, we do ask that blanket statements that would not hold up under scrutiny to cease. If there are specific issues, supported by data, like the need for font size to be larger than currently required by Federal Law on some areas of products so that they are easier to see, as that would be more beneficial to inform consumers, we’re happy to explore those conversations with you, and find ways of working together for the benefit of all concerned parties …”

For more information, visit www.npanational.org.

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