The blogospheric consensus is against the FDA move to ban mixtures of alcohol and caffeine. (John Cole speaks for many in calling the decision“complete idiocy.”)* Since a bar can serve both alcohol and coffee or Coke, goes the argument, what’s the point of banning pre-mixed combinations?
* Update John has changed his mind.
An editorial in the current Nature cites a 2008 study that seems to provide an answer.
The drinks are said by the FDA to be of special concern because the caffeine counters the alcohol’s soporific effects, leading largely young and inexperienced drinkers to drink more, and to perceive themselves as more capable, and less drunk, than they actually are. The science in this area is in its early days and incomplete, but several studies do show cause for concern. One measured the breath-alcohol levels of 623 drinkers — almost all of them students — leaving bars in a Florida university district in 2008. It found those who had consumed alcohol mixed with caffeinated energy drinks were three times more likely to leave the bar highly intoxicated, and four times more likely to intend to drive, compared with drinkers who consumed alcohol alone (D. L. Thombs et al. Add. Behav. 35, 325–330; 2010).
That’s not a knock-down argument for the ban on Four Loco, but it does knock down the counterargument that banning combinations couldn’t possibly matter. Of course it could, since people in bars aren’t optimizing machines. If in fact people get drunker, and less aware of being drunk, consuming combination beverages, that’s a perfectly adequate basis for a ban. Anyone who wants to exercise his sacred an inalienable right to get alertly sozzled can always order some coffee to go with his beer.
The broader point here is that intuitions (often masquerading as principles) derived from markets in ordinary goods often turn out to be false in dealing with goods with a tendency to produce bad habits: with “vices” in one sense of that term. That’s the reason why drug policy makes sense as a field of study while sportscoat policy does not. The three four key insights from drug policy are:
1. All habit-forming intoxicants are alike, and each of them is different from the others.
2. Most people who use a habit-forming drug never form a bad habit around it, but some of them do, and there’s no simple way to figure out in advance who is at risk. So making a habit-forming drug widely and cheaply available, with heavy marketing, means that a substantial number of people are going to wind up miserable. Nor is there any reason to think that the number of people at risk is constant as the number of readily available drugs expands, because not everyone is at risk from the same drugs. And combinations make the problem worse.
3. In the real world, some of the costs of drug abuse are borne by people who don’t themselves abuse drugs: in the forms of accidents, crimes, and increased bills for auto insurance and health insurance. Taxation can’t, generally, be made to cover those costs without raising the specter of tax evasion and the need for enforcement. Intoxication, by making peopl less sensitive to future costs, makes them less deterrable, so criminalizing the resulting behaviors is not a perfect substitute for controlling the frequency of intoxication. The families and friends of drug abusers also suffer. So drug abuse is not, in fact, “self-regarding behavior.”
4. Fighting drug abuse by reducing availability always has costs: loss of liberty, loss of the benefits of non-abusive drug-taking, and sometimes illicit markets and the need for enforcement. Good policy balances those control costs against the costs of abuse, looking for a system that minimizes total harm.
Consequently, anyone offering a simple “solution” to the drug abuse problem, in the form of maximum controls to produce a “drug-free society” or eliminating prohibitions in favor of “taxation and reguation” or “prevention and treatment” is peddling snake-oil. The costs of drug abuse, and the costs of drug abuse control measures, are both real and inevitable, and the grown-up approach requires facing the tradeoffs squarely rather than pretending they don’t exist.
Historical footnote I’ve been consistent on the alcohol-and-caffeine issue. My friend David Kennedy playfully came up with the idea of caffeinated beer fifteen or twenty years ago. He even had a product name in mind - Whipsaw - and a slogan: “Friends don’t let friends go to sleep drunk.”
And of course once the Whipsaw brand had been established, it could have been extended; as I recall, methamephetamine-and-alcohol was going to be called “PowerSaw.” As further extensions, we could have marketed both non-alcoholic Whipsaw for the abstemious and de-caffeinated Whipsaw for those cutting back on their stimulant load.
Clearly, there was money to be made. But having come up with the idea, David concluded, and I reluctantly agreed, that no amount of money was enough to justify spending our next two incarnations as neutered alley-cats, so we passed up the opportunity.
Part of the appeal of the premixed drinks is the convenience. I suspect Four Loko (et al) already have plans for caffeinated mixers, just add vodka or everclear. There likely is some advantage to having the ingredients separate, not premixed. I wonder if the profit margins will be as high for a mixer?
Redbull and vodka, whiskey or jagermeister are all popular drinks. (EG jagerbomb , chili bomb, etc)
ITYM four insights:
Hey, Mark's all hopped up on tryptophan now, man. Don't judge.
I think the biochemical issues are pretty much irrelevant to the constitutional issue; That the second clause of the 21st amendment gives state, not federal, alcohol policy constitutional primacy. I think the term the federal government uses when the shoe is on the other foot is "field preemption". If a state wants to ban alcohol/caffeine premixes, it can do so, and the federal government has to assist it with enforcement. If a state doesn't ban them… the federal government can't 'remedy' that omission.
I'll readily concede that wide awake drunks are probably more dangerous to themselves, and others, than sleeping drunks. Drunks are more dangerous to themselves and others than the sober, too. But we repealed Prohibition…
Consequently, anyone offering a simple “solution” to the drug abuse problem, … or eliminating prohibitions in favor of “taxation and reguation” … the grown-up approach requires facing the tradeoffs squarely rather than pretending they don’t exist.
At the base of drug policy, there is a binary choice to be made, either prohibition or accommodation. The prohibition can be tempered with some judicious leeway and accommodation can be constrained by some prudent barriers, but essentially, there are only two modes and one must be adopted. One of the fundamental deficits of prohibition is that, being an absolutist policy, it allows no room for engaging and developing a considered attitude towards its object, thus locking the policy 'in'. Any attenuation of its instruments have to be defended in roundabout ways, and can't be set appropriately given the rhetorical and/or ideological surface commitments.
Brett
The problem with your analysis is that the federal government has the power to regulate food additives, including caffeine. Putting something in alcohol does not negate federal authority over that something, whatever it is (If a batch of alcohol was infected with a new superbug, the CDC could respond, for example). Alcohol is just as legal after this decision as before, the federal government's action doesn't change that nor is it intended to.
Keith
Keith, what's sauce for the goose… You could, just as validly, say that Arizona isn't violating the federal government's control of immigration. But that's not how field preemption works, is it? As I say, the shoe is on the other foot here. I'd be fine with throwing the shoe out, abolishing the notion of field preemption. But abolishing it only in the case where the STATES have a constitutional claim to it? Nope.
As for the policy, from a policy perspective? Stupid.
It's already illegal to drive drunk, even if you are caffeinated into something that looks like alert. It's still going to be legal to pop a nodoze after your binge, or alternate at vodka and Mountain Dew, or just order Irish Coffee.
I am, generally, opposed to laws which attempt to get at the harmful conduct in question indirectly, by coming down on something which has both harmful, and not so harmful uses. A law like this, which makes buying a caffeinated alcohol beverage to consume at home, or when you've got a designated driver, or in moderation, illegal, just to get at abusive uses of it, is not unlike banning texting features on phones to stop people from texting while driving. It's too indirect for my tastes.
And the FDA isn't supposed to be in the business of banning beverages because they could be abused. It's supposed to be banning things because they're toxic. If there were some kind of biochemical synergy between alcohol and caffeine, like maybe it interfering with liver metabolism, the FDA might have a leg to stand on. But there isn't. They just don't like the idea of drunks being alert, or drinking too much.
And that's not their mission.
Brett
>It’s supposed to be banning things because they’re toxic
That is simply not correct. Black letter law: The legal standard for FDA, like it or not, is GRAS (generally recognized as safe). The FDA does not have to prove that something is toxic in order to ban it, that isn't where the burden of proof lies. Granted you may not like the law, but Congress passed it and they have executed it in full keeping with the legal standard.
Keith, as you note, caffeine is GRAS. And the FDA isn't banning these drinks because they're unusually toxic. They're not. It's banning them because people might get drunk and drive, or drink too much. It could ban alcoholic beverages with sugar in them on the same theory. Hell, they could ban alcoholic beverages with ALCOHOL in them, no this theory!
This is EXACTLY the sort of alcohol regulation that is reserved, by the 21st amendment, for the states. Try not to let your preference for federal level regulation get in the way of recognizing this. This is, constitutionally, none of the federal government's business.
Some of the states have chosen to ban these drinks. Some of them have not. It's not the federal government's place to over-ride the later states' choice in the matter. WE AMENDED THE FREAKING CONSTITUTION SPECIFICALLY TO MAKE SURE OF THAT.
The alcohol can be sold as ever under state regulation, what is banned is the caffeine additive. If a terrorist puts arsenic in a thousand bottle of wine, the federal government can and will act. If someone smuggles a nuclear warhead in a barrel of beer, the federal government can and will act. If a bartender is kidnapped and held for ransom, the federal government can and will act. All federal authority does not dissolve in alcohol.
Mark- I actually backed down in the next thread and acknowledged I was wrong. I had a knee-jerk reaction about it, but was persuaded by my commenters that I was wrong.
Keith, I have already acknowledged that, if the combination were somehow toxic, the FDA would have some basis for the regulation. But we're not talking about arsenic. We're not talking about drink mixes that explode. We're talking about an amount of caffeine you might normally consume. We're talking about an alcoholic beverage the FDA doesn't want sold because people might get DRUNK. Their problem isn't with the caffeine, it's with the alcohol. The caffeine just gives them an excuse to ban the alcohol.
It's no accident that your analogy was to a poison, or a bomb. You resorted to that because it's just exactly the fact that the caffeine ISN'T toxic that's the weak point in your argument, in the FDA's position. "It might cause people to drink too much." is NOT an FDA rationale for banning something. It's a Carrie Nation rationale.
And, again, we repealed Prohibition. The FDA's proposed ban is nothing more or less than the first step in the direction of undoing that repeal. People getting drunk is, constitutionally, not a federal concern. It's a state concern. Even if you do have a standing preference that all regulations be decided at the federal level, lest some state decide not to impose one you'd like.
I don't really see what the loss of liberty is here. Red Bull amd vodka are still widely available and mass marketed (and despite what Prof. Kleiman says, not allowing mass marketing of a substance is a serious imposition on Americans, because that is the way that we make products widely available to them). This isn't like a drug prohibition at all. I would apply very tough burdens of proof before denying Americans the right to purchase a fun recreational substance on the market. But this is not that cae, because people still have access to alcohol and caffeine if they want to combine them.
It's not a loss of liberty issue, much. It's the same reason I want DeLay nailed to the wall, even though I think what he did wasn't very bad, objectively. It's a simple rule of law issue. Alcohol regulation is a state level power. I don't give a bucket of warm spit whether the FDA's regulation is wise, it's not the *sort* of regulation the FDA is supposed to be in the business of promulgating.
If a state legislature passed the exact same rule, the matter would be entirely different.
I am losing energy on this one, we're just going to have to agree to disagree. The FDA isn't regulating alcohol, alcohol is as available and legal as ever. They are regulating something that they have a federal power to regulate, whether it's added to alcohol or chocolate chip cookies. The Constitution and the Republic will survive the end of FourLoko.
"The Constitution and the Republic will survive the end of FourLoko."
Indeed, though the manner of it's end might be one more of those thousand cuts to it, it's a shallow cut compared to many.
I'd just like to live long enough to see liberals admit that a policy they like is, constitutionally, a state matter, and that the feds should stay out of it. After all, my son is 2, and I'd like to see my great grandchildren… 😉
Brett, you acknowledge the FDA can regulate alcohol IF xyz is true. So yes, even you agree that there is a proper place for regulation of it despite the 21st amendment.
You strongly disagree that the stated reasons are adequate given our current laws. That does not make it unconstitutional, but merely wrong. Or likely illegal if folks are actively hiding their motives. But still not unconstitutional.
Since alcohol is mildly toxic, and other chemicals can enhance the toxicity of it, there is a slippery slope argument to be made that federal law does apply.
Alcohol is more than mildly toxic, and, yes, other chemicals can enhance the toxicity of it. Caffeine not being one of them. And, as I believe I've mentioned before, some people react to slippery slopes by driving pitons, others by slathering on the grease. I think we're in different camps in that regard…
We're spending way too much on the Constitutional issue and not enough on the science. Can we talk about self-selection please? Can we talk about directions of causation please? Could it be that people who already intend to drink copious amounts of alcohol then select caffeine in addition so that they don't get sleepy? Kind of like the drunk who spends a half hour at a diner to 'sober up' with coffee? We've all heard of that right? As a foolish strategy that has been commonly utilized since the 1940s at least? Statistics get misused so often, but we don't have to do that here, right?
Debating whether a particular drug is harmless or not is missing the whole point. Are drugs like Heroin, Meth, caffeine, or Alcohol dangerous? It simply doesn't matter, because if we prohibit them then we sure as hell know that it makes a bad situation far worse. If someone wants to attempt to enhance or destroy their lives with particular medicines or poisons, that should be their business, not anybody else's. Their lives aren't ours to direct. And, anyway, who wants to give criminals a huge un-taxed, endless revenue stream?
Why on earth does anyone think it's acceptable to want to control certain behaviors, such as the bedroom habits or choice of poison of fully grown adults? Isn't it high time we evolved enough to get past this crap? Surely we need to accept, that the only way to truly be free, is that you agree, in return, to allow other people to be free, even if it offends your personal sensibilities. What's more; if it's not directly hurting you and you forbid it, then you can be sure that it will create unforeseen circumstances, which WILL have an adverse affect on YOUR wellbeing! — Actually, a large proportion of those arising circumstances may not come as such a surprise to those of us who are capable of paying due attention to historical precedent.
Have you ever watched the Drug War Clock as it ticks away all our hard earned tax dollars? http://www.drugsense.org/wodclock.htm
Or the US Debt Clock http://www.usdebtclock.org/
Alcohol prohibition in the US run from 1919 to 1933 - Now google 'The Great Wall Street Crash' and see when that happened!
During alcohol prohibition, all profits went to enrich thugs and criminals. Young men died every day on inner-city streets while battling over turf. A fortune was wasted on enforcement that could have gone on treatment. On top of the budget-busting prosecution and incarceration costs, billions in taxes were lost. Finally the economy collapsed. Sound familiar?
http://1929crash.com/
If you have liberty then expect prosperity, but there’s most definitely no chance of prosperity without liberty.
To support prohibition you have to be either ignorant, stupid, brainwashed, insane or corrupt.
Very few people on the anti-prohibition side make it seem so simple as "end prohibition and provide treatment and all of our drug problems go away." The choices are not perfect, and they never could be. The question is one of harm reduction, and I believe that an anti-prohibition policy (or more accurately policies) make the most sense.
What you fail to realize, Mark, is that you have absolutely no right to punish people who have not been proven to have harmed anyone. It's really very simple. Furthermore, you have no god-given right to the "unharmed" bodies and minds of your fellow citizens. You have no right to enforce upon others your conception of health. I have no right to punch an over-eater in the face, nor you to lock up a man who takes some LSD in the privacy of his own home.
It's not complicated.
You may claim that the harm that would ensue, were your hands to be tied in this "enforcement", is worse than the harm currently taking place, but that is not your decision to make. You can claim that the harm from tobacco and alcohol proves the dangers of ending prohibition, but you can never prove your right to prohibit the consumption of certain chemicals at the barrel of a gun.
You can't even maintain the pretense of punishing the harm you claim to be so concerned with preventing. Why not an additional fine to be levied on drunk drivers or bar-fighters found to have an elevated level of caffeine in their blood? Why not additional charges to be filed when a any criminal act is committed under the influence? What is it about punishing actual proven societal harm that is so difficult for you?
It's funny, because your original proposition, that caffeinated alcoholic drinks should be banned, is relatively sound, as it does actually intend to limit harm without infringing upon your fellow citizens inalienable rights because both chemicals remain legal. Now all you have to do is make sure that further constraints abide by similar logic.
Thanks.
First of all, even if there is proof that caffeine combined with alcohol is significantly more harmful, there still needs to be evidence that caffeinated alcoholic beverages increases the amount of consumption of such a mixture. It very well might, but before banning something, would it be so difficult to conduct a couple of studies or surveys or something to see if the consumption has increased? Even if it seems intuitive that it would have, isn't a ban (and consumers' choice, and a company's profits) a drastic enough measure to demand some study before it's put into place?
"3. In the real world, some of the costs of drug abuse are borne by people who don’t themselves abuse drugs: in the forms of accidents, crimes, and increased bills for auto insurance and health insurance. Taxation can’t, generally, be made to cover those costs without raising the specter of tax evasion and the need for enforcement. Intoxication, by making peopl less sensitive to future costs, makes them less deterrable, so criminalizing the resulting behaviors is not a perfect substitute for controlling the frequency of intoxication…."
So? Does that mean the only option left is a ban? How about labeling? Why not try strict labeling rules (cans like that are generally pretty eye-catching with their art, why not replace that with a big ugly label that says: "the combination of alcohol and caffeine is substantially more dangerous than either by itself" (or something like that, perhaps with a little more specific explanation of what the danger is, worded in such a way as to discourage over-use)? It wouldn't necessarily work, but all i'm saying is why not try it first before we go for a ban?
As to the rest of number three: "The families and friends of drug abusers also suffer. So drug abuse is not, in fact, “self-regarding behavior.” "
So ban four loko? Ban any drug that seems too prone to abuse? Has there ever been anyone in the history of the world who has not indirectly harmed another? Or psychologically had a negative impact on another? I'm not saying that i don't recognize that drug abuse is something that warrants our efforts to reduce and even legislate to try to reduce, but should an outright ban always be our first option?