On Friday Wichita Eagle reporter Dion Lefler issued a challenge to me based on my criticism of FDA regulation of Four Loko, a beverage marketed to young people that contains lots of alcohol, the stimulant caffeine, and other energy-producing ingredients. See Will Voice for Liberty blogger Bob Weeks accept the Four Loko challenge?
The short answer is thank you for asking, but I won’t be accepting the challenge. After all, the can of Four Loko contains as much alcohol as a bottle of wine. Now I enjoy a cocktail or glass of beer now and then, but I don’t think I’d enjoy consuming that much alcohol quickly in a short time. (I think that’s what “shotgun” means.)
Underlying this article is a serious public policy issue, described in Lefler’s reporting on the topic in the article Kansas scrutinizes alcoholic energy drink. Because the mix of caffeine and alcohol in this and similar beverages causes some people to consume more alcohol that they might realize, young people have been injured and hospitalized after consuming large quantities. The result is a call for banning the drink. Because I am not in favor of such regulation, I think I’m being accused of advocating the use of Four Loko by young people.
The challenge faced by all who favor liberty over heavy-handed state regulation is that by not supporting — in this case — a law or regulation against Four Loko, critics accuse us of endorsing its use. Or, since we don’t support laws against these things, critics assume that we don’t care about the unfortunate people who have been, and may still be, harmed by use and abuse of Four Loko.
I care. I’m sorry that young people have been harmed by this product. I don’t want anyone to be hurt or killed. But often regulation — no matter how well intended, no matter how sensible — doesn’t work. Sometimes regulation causes harmful unintended consequences.
A recent example is the bans on texting while driving that have been passed in many states, including Kansas. Sounds like sensible regulation, doesn’t it? Who wants to see people harmed on our streets and highways because someone was pecking out a text message while speeding down the street?
But as we learned a few months ago, the texting bans may not be working. According to the Highway Loss Data Institute: “… such bans are associated with a slight increase in the frequency of insurance claims filed under collision coverage for damage to vehicles in crashes.” Speculation is that the illegality of texting while driving causes people to attempt to disguise their texting, which increases the danger.
Will banning Four Loko produced the desired result?
There’s other ways to produce the effect that Four Loko and similar drinks provide, if people want that. One can simply drink coffee or consume caffeine in other forms while drinking alcohol. A popular cocktail in clubs (so I’m told) is Red Bull and vodka. Red Bull is a popular energy drink that contains a lot of caffeine and other ingredients designed to increase one’s energy level. Mixed with vodka, it’s pretty much the same recipe of active ingredients as Four Loko.
But there’s not been much publicity about the negative effects of this cocktail, to the extent they exist. Perhaps it’s because the Red Bull/vodka drinkers may be an older group, while Four Loko is marketed towards young people.
Now that the maker of Four Loko has announced a non-caffeinated version, how long will it be until people start mixing in or consuming NoDoz or other caffeine-containing products with this new version? Will this behavior be even more dangerous? The forbidden fruit is very tempting.
The regulatory state
In the Central Washington University incident that is often cited regarding Four Loko, the injured college students were “freshmen ranging in age from 17 to 19,” according to news reports. The legal drinking age in Washington is 21, so it was probably illegal for these young people to be possessing and consuming any type of alcoholic beverage.
As Lefler reports, if Kansas wants to ban these products, it would probably take an act of the legislature. Assuming Kansas lawmakers would pass such a law and the governor would sign it — and it seems likely they would — the soonest it could be done in normal course is January, when the legislature starts its next session.
This highlights a weakness in the state regulatory machinery. If we believe state regulation is the best way to deal with this product, what if the calendar says it’s May and the legislature has just adjourned, not to meet again until January? Shall the governor call a special session?
At the federal level, the FDA news release from last week states: “FDA’s action today follows a November 2009 request to manufacturers to provide information on the safety of adding caffeine to their products.” Apparently this issue has had the attention of the FDA for a year, but only now is action being taken.
But — regulation may work
Because Four Loko is sold in stores that are already heavily regulated in most states, a ban on Four Loko and similar beverages will be relatively easy to enforce. Few liquor retailers will be willing to come under state sanction and possibly losing their licenses for selling these products. So regulation will likely be successful in getting rid of the product in legal sales outlets. But as mentioned above, the same recipe and effect can be had in a variety of ways, all legal.
Which brings up a related point: What if there was a new variety of an already-illegal drug, perhaps marijuana, that caused harmful effects on the same level as Four Loko? How would we deal with that? Because sellers of marijuana already operate illegally in most states, they don’t have the same concerns about keeping their licenses as do liquor stores.