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Energy Drink Companies to Continue To Market To Our Kids

Posted on behalf of Goldberg Finnegan, LLC on Aug 01, 2013 in Energy Drinks

Remember Joe Camel??? Well he is back! This time it is the Energy Drink Industry trying to pull the wool over America's eyes in order to make a profit at the expense of our children. The good news is that our elected representatives are finally taking notice of the problem and of the potential dangers of energy drink consumption by young people (now that the American Academy of Pediatrics, American Medical Association and the scientific community have expressed concerns). The bad news is that, my take away from the U.S. Senate Hearing on Energy Drink Marketing Practices is that for the foreseeable future energy drink companies will continue to market to our kids (at least those 13 and over).

On July 31, 2013 I attended the U.S. Senate Hearing on Energy Drink Marketing Practices. Senator Durbin starting off by stating

"Ten years ago, most of the people in this room had never heard of an energy drink. Things have certainly changed. By some estimates, the sale of energy drinks has risen by 60% over the last 5 years. Energy drinks are now a common fixture in grocery stores, vending machines, and convenience stores. As the sale of energy drinks has grown, so has the alarming evidence that they pose potential health risks and that the energy drink market has grown to its current size through marketing to children and adolescents."

The witnesses included Rodney Sacks, the CEO of Monster Beverage, Amy Taylor (an Executive from Red Bull), and Ms. Janet Weiner (the Chief Operating Officer and CFO of Rockstar), Dr. Marci Schneider on behalf of the American Academy of Pediatrics, Dr. Jennifer Harris (a Marketing Expert from Yale University), Dr. Spencer from Suffolk County, and Dr. Coughlin (a toxicologist hired by the Energy Drink Industry).

Just as the Tobacco Industry told Congress in 2006 that cigarettes were not addictive and that they did not market to children, the Energy Drink Executives are telling Congress that they do not market to children and that energy drinks are safe despite overwhelming and obvious evidence that they do market to children and that energy drinks are unsafe.

Bottom Line: the reality is that as of this moment Energy Drink companies are going to continue to market to our children and teens (including those under 18). Energy Drink companies are not willing to restrict social media marketing to those over 18, they will not agree to put on the label that Energy Drinks are not for kids under 16. Despite the energy drink's industry's refusal to make these promises, they continue to tell the public (and the Senate) that they do not market to children.

I thought that the testimony from the Energy Drink companies was laughable, and Monster and Rockstar came off looking especially foolish (At least RedBull had the good sense to agree to take some actions to address the concerns--see below). Generally, the energy drink company executives all testified under oath that they do not market to children, but basically admitted that their ads have, in the past included children; and that their product is safe for teenagers to consume by teenagers. They admit that they utilize social media in their marketing efforts, but are unwilling to restrict social media advertising to those over age 16 (which apparently social media technology allows them to do). They are saying one thing, and doing something else. This sentiment is apparently shared with Senator Durbin who indicated that:

"Across the board, makers of energy drinks say they do not market their products to children. But then you hear about samples of energy drinks being distributed at places where teens hang out - like sports events, concerts, local parks, and SAT prep courses. You can go to their websites and see that energy drink makers sponsor athletes as young as 10 years old, who have lots of young fans. Here is a July 2012 cover for Red Bull's magazine Red Bulletin. The boy featured on the cover in Red Bull attire is 12-year old Enzo Lopes, a motor cross athlete signed to represent Red Bull. Companies use highly effective tools to reach young people like video games on their websites, social media, flashy ads, and claims to increase attention, stamina, and help with hydration and building muscle. Contrary to industry claims that they do not market to children, we can see that they do and that it is working."

An example of the nonsense is as follows: Monster's CEO testimony says "I would like to emphasize that the Company does not market Monster to children, and has never done so." He was then confronted with a large poster of a Monster Army ad showing a young child wearing a Monster shirt and he admitted that this young kid was likely a sponsored athlete of the "Monster Army". He admitted that the Monster Army had, in the past, sponsored children-even possibly as young as 7 years old--but that Monster recently changed the age requirement to 13 (Apparently Mr. Sacks believes that kids aged 13-18 are not children). He said that Monster Beverage Company's demographic is young adults. He came off as trying to split hairs with Sen. Blumenthal and admitted that Monster will sponsor athletes who are kids (with parental permission) but that he still says that Monster does not market to kids (very odd and hard to make sense of this). In my opinion, the Senators seemed annoyed by this gamesmanship.

Senator Markey confronted Rockstar's Representative with a picture of a young kid from a Facebook Photo album with tagline "A Rockstar for Life." Rockstar's representative got testy, and was basically unapologetic and just tried to say it was ok because they had the kid's parents' permission. Rockstar and the energy drink industry just do not get it. The American Academy of Pediatrics, American Medical Association, SAMHSA, and numerous medical professionals have all expressed grave concerns about the dangers of energy drinks being used by children.

Emergency room visits due to energy drinks have doubled since 2007. Adverse Event Reports are piling up at the FDA. These companies do not care and they are even willing to split hairs and play games with words to justify their marketing tactics ("we don't market to kids.....oh yeah.....but we do market to 13 year olds, 14 year olds, and 15 year olds"). By using young kids in their marketing and social media they are encouraging children to consume energy drinks.

There was some relative good news from this hearing (assuming the energy drink companies live up to their promises)-mostly from Red Bull:

1. Rockstar, Red Bull and Monster Energy agreed that they will not encourage "rapid consumption" or chugging of energy drinks. (There is apparently some evidence that rapid consumption and chugging of energy drinks is even more dangerous than slowly sipping, and Monster's 24 oz. can said "Our new jumbo can has a big mouth opening so you can chug it down..." (This is very good news for consumers and I believe that if coupled with public education it will save lives).

2. Red Bull and Monster Energy all agreed that in future distributor contracts they will insert contractual language that will prohibit third parties from distributing to children (unclear how they define children though....). (This is good news for consumers).

3. Rockstar and Red Bull committed to reporting all potential adverse events that come to their attention to the FDA. I do not think that Monster Beverage has agreed to this yet. (This is good news for consumers. Hopefully Monster will voluntarily agree to do this as well.

4. Red Bull announced that it is making voluntary commitments with regard to the safety of its product including, but not limited to:

(i) they will label energy drinks as a food and agree for their product to be regulated as a food

(ii) the label will state the total caffeine content

(iii) they will not sell cans if there are more than 80 mg of caffeine per 110 oz.

(iv) they will not encourage rapid consumption or chugging of red bull

(v) Red Bull will not use kids under age 18 in ads

(vi) Red Bull will not buy advertising if more than 35% of the viewers are under 18

(vii) they won't sell Red Bull at events attended by Kindergartners through 12th graders

(viii) they won't sample Red Bull at events geared towards K-12.

They also said that if Monster and Rockstar agreed....They would also agree not to sell cans greater than 12 oz., and would agree to report all adverse events to the FDA. Red Bull acknowledged that the large can sizes are part of the problem. (Good news for consumers)

The Senate Committee seemed committed to take action to protect children from the potential dangers of energy drinks. In the next few weeks there are going to be meetings and conferences at the Food and Drug Administration and the Institute of Medicine about Energy Drinks.

What I don't get is why the legislators are so focused on just addressing the marketing tactics. I think that the solution is to ban the sale of energy drinks to anyone under age 18, and to force the energy drink companies to change their labeling and to provide a much better warning about the dangers.

In conclusion folks, this fight is not over. We need to educate our children, friends, and family about the potential dangers of energy drinks because the ads (and social media) and message our kids are seeing are giving a contrary message.

Our law firm is investigating serious injuries and consumer complaints about energy drinks. We currently represent the families of several children who died after consuming energy drinks. We are also hoping to work with legislators to pass laws that will address safety concerns about energy drinks.

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