Meet the New FDA Caffeine Crackdown

The FDA's latest misguided crackdown targets caffeine. It's déjà vu all over again.

The FDA announced earlier this week that the agency will investigate "any and all products with added caffeine."

FDA officials claim they were spurred to take action after the recent introduction of one product, Alert Energy Gum, a new caffeinated gum made by Wrigley.

The agency argues that such a novel product necessitates a longer look at all foods and beverages that contain added caffeine.

While the FDA's interest in caffeine is hardly new, neither is caffeinated gum. The idea has been around at least since 1980.

Coincidentally, it was during that same period that the FDA helped foment a minor hysteria around the presence of added caffeine in foods.

FDA rules consider a food additive to be generally recognized as safe, or GRAS, when it's "adequately shown to be safe under the conditions of its intended use." FDA regulations had explicitly recognized the GRAS status of caffeine added to "cola-type beverages" since 1961.

But in October 1980, the FDA launched proceedings that could have imposed severe restrictions on the presence of caffeine in all foods.

When the agency didn't move quickly to revoke caffeine's GRAS status, it was sued by the Federation of Homemakers, a 1950s-sounding consumer group dedicated to "protecting the integrity of food products."

News reports from the time give a broader picture of the anti-caffeine climate of the early 1980s.

A 1981 Christian Science Monitor article, for example, repeats the hilarious claim of some anti-caffeine activists that "Americans are drinking large amounts of caffeinated soda, often without even realizing it," implying that eating and drinking is some sort of passive process that frequently happens to people without their knowledge.

The article also reports that the Center for Science in the Public Interest was at the time "lobbying for a ban on caffeine in soda pop."

In spite of the hysteria, a federal judge ruled against the homemakers.

That might have been the end of the story were it not for FDA documents uncovered by angry coffee drinkers and other supporters of caffeinated drinks. They argued correctly that caffeine has been consumed safely for hundreds of years and that this fact should largely take the substance out of the FDA's regulatory purview—granting caffeine a status known annoyingly as a "prior sanction." (A Janus word, "sanction" here means "approval" rather than "disapproval.")

By 1987, according to a short and interesting summary in Food and Drug Law, the definitive FDA law school casebook, the "FDA proposed to recognize a prior sanction for caffeine in nonalcoholic carbonated beverages[.]"

This would have been the sensible thing for the agency to do.

But because it's the FDA, the agency instead took a mere 17 years to ponder that action before deciding not to take that—or any other—particular course.

Which brings us to back to caffeinated gum, which the FDA's Michael Taylor referred to this week as part of a worrying pattern of "new and easy sources" of caffeine that are "beyond anything FDA envisioned."

That's rich.

Not only is caffeinated gum not the least bit new, neither did it fly under the federal government's radar. In fact, the Pentagon reportedly spent hundreds of thousands of taxpayer dollars over the last 15 or so years testing whether nothing less than caffeinated gum can help U.S. troops be more mentally acute in the battlefield

So why this potential crackdown based on a decades-old product that the U.S. government itself has studied for its alleged benefits?

The last time the FDA warned the public of products containing caffeine, back in 2009, the result was a ban on the addition of caffeine to beers like Four Loko.

With an agency history in the area of caffeine that is as fascinating as it is idiotic, contradictory, enraging, and aimless, there's good reason to fear for the future of everything from caffeinated gum to energy drinks, and from caffeinated beef jerky to Mountain Dew (which is not a "cola-type beverage" and so could be in jeopardy under the strict interpretation of FDA rules the agency wields at its whim).

"[I]s this something we need?" asks Marion Nestle, a professor of public health at New York University and prominent advocate for greater government restrictions. Though Nestle's rhetorical question was directed at Wrigley and its caffeinated gum, a more appropriate target for such inquiry would be the FDA itself.