Another shot of caffeine & NJ proposed ban

As forecast, federal regulators threw a flag on caffeine added to alcoholic beverages, taking aim at concoctions like Four Loko and Joose that feature a sort of Jekyll-Hyde combination of ethyl alcohol (12% ABV) and caffeine jolt (three cups of joe).

The Food and Drug Administration warned the makers of those beverages, in addition to Massachusetts-based New Century Brewing and its Moonshot beer (4% ABV and 69 milligrams of caffeine), that caffeine is an unsafe additive in their beverages and their beverages are being marketed contrary to federal regulations. The upshot: they risk seizure of their products and a halt to production.

But it gets doubly worse for the beer industry's Rhonda Kallman, founder of New Century (and a figure known for helping launch and establish Boston Beer and the Samuel Adams brand): the Commonwealth of Massachusetts is frowning harder on caffeine in alcoholic beverages than the US Food and Drug Administration is in its warning of last week. Her company apparently could end up getting knocked out of business. (Moonshot's Web site was inaccessible on Sunday.)

Here in New Jersey, there are bills in the state Legislature that would ban the sale of caffeinated alcoholic beverages, including beer (keep reading).

The two bills – an Assembly version and identical Senate version – were introduced by Assembly members Valerie Huttle and Ralph Caputo, and Senator Kevin O'Toole, toward the end of October. The Assembly version has been referred to that chamber's Consumer Affairs Committee.

The legislation casts a wide net and lumps in beer, while defining a caffeinated alcoholic beverage as "any prepackaged alcoholic beverage that has been supplemented by the manufacturer with caffeine or other stimulant that is metabolized by the body as caffeine."

What's not indisputably clear (think lawyers arguing fine points) in that wording is whether brewing with coffee, chocolate or other caffeine-bearing ingredients could amount to supplementing the beverage. Logic – and craft brewing practices, for that matter – would tell you no. So would the FDA.

But it's not specifically spelled out.

That's a reason the Colorado-based Brewers Association, the craft beer industry trade group, has asked federal regulators for some clarification (and rule-making), since states can pretty much make whatever rules that want to control alcoholic beverages manufactured and sold within their borders. While the FDA wags a finger, states can slam doors closed.

As we know, craft brewers sometimes use ingredients like coffee and chocolate – and their signature flavors – to shape the flavor profile of a beer, unlike Kallman's Moonshot. (Kallman conceived of the addition of caffeine as a boost.)

Jersey brewers are taking the view that any caffeine that winds up in a coffee porter or chocolate stout is an incidental byproduct of the brewing process, not a direct addition of caffeine to the beer.

And that's backed up by the FDA, which said its warning wasn't directed at those alcoholic beverages that only contain caffeine as a natural constituent of one or more of their ingredients, such as a coffee, but rather malt beverages to which caffeine has been added as a separate ingredient.

Still, for craft beer enthusiasts, it could be worth writing the sponsors of the New Jersey legislation (A3437, S2423), asking for delineation (assuming this measure picks up speed) and that the state not take bona fide ingredients away from Garden State brewers.

Valerie Huttle:
1 Engle St.
Suite 108
Englewood, NJ 07631
(201) 541-1118

545 Cedar Lane
Teaneck, NJ 07666
(201) 928-0100

Ralph Caputo
148-152 Franklin St.
Belleville, NJ 07109
(973) 450-0484

Kevin O'Toole
155 Route 46 West
Suite 108
Wayne, NJ 07470
(973) 237-1360

The buzz about caffeine in booze

US Senator Chuck Schumer, an opponent of caffeine in beverages containing ethyl alcohol, says on his Web site that federal regulators (the Food and Drug Administration) plan to declare caffeine an unsafe food additive to those beverages.

What's stuck in the New York Democrat's craw? Alcohol and caffeinated energy drinks like Four Loko and Joose. His Web post of today cites students getting into trouble (specifically, passing out and having to be hospitalized) after consuming Four Loko, and other concerns about alcohol abuse.

Schumer contends such beverages are jacked up with about half a pot of coffee and almost half a six-pack's worth of beer per serving (which is a big, fat can – 23 ounces), and are therefore unsafe. Meanwhile, Four Loko's maker says it will yank caffeine from the drink.

But that leads to this: The Brewers Association announced today that it will ask the federal Tax and Trade Bureau, the folks who have a say in approving beers that end up on the US market, to "conduct rulemaking on alcoholic energy drinks." (The BA's news release can be found here.)

Seeking to safeguard the use of coffee and chocolate in beer (think coffee porters and chocolate stouts etc.), the Brewers Association is petitioning the TTB to put the hammer down on synthetic and pure caffeine as an additive to alcoholic beverages (wonder if this could ground Moonshot, although that brew adds natural caffeine) while keeping coffee, chocolate, herbs, tea, spices and other caffeinated ingredients as options on the shelf for creative brewers.

The Brewers Association points out that many states are already walking point on this topic, and can easily do so because after Prohibition, they were granted wide latitude to regulate alcoholic beverages on their own. The result across the country is the familiar quilt of differing rules, and in this case, a developing patchwork of different rule-phrasing that pretty much adds up to saying the same thing.

The Colorado-based BA would rather see everyone on the same page and a consistent standard crafted that "would remove the products of concern from shelves without creating unintended damage to the hundreds of craft brewers."

Says Brewers Association President Charlie Papazian: "Responsible brewers have successfully used coffee, chocolate and tea to add interesting flavor and complexity to their beers for decades. In fact, the Aztecs brewed a corn, honey and chili-based beer that contained cocoa. Many craft brewers build on these traditions today using coffee, tea and chocolate. On the other hand, the addition of artificial caffeine not from a natural ingredient source has no heritage or tradition in brewing. We support a ban on the direct addition of caffeine."

How does it affect New Jersey brewers? Well, Jersey brewers have and still do brew with coffee and chocolate.

Consider this: Basil T's in Red Bank took home gold and bronze medals from the Great American Beer Festival for using coffee in a stout; Iron Hill in Maple Shade just this month released a coffee stout; and Flying Fish, which brought porter back to its flight of brews as a seasonal using espresso coffee, plans to release a Belgian chocolate stout in December as the next installment in its Exit Series.

And that's just an off-the-top accounting of such brews in the Garden State. There are certainly others.

Ultimately, it would be folly and unfair if the FDA painted in too broad of strokes and took bona fide ingredients, like coffee, out of brewers' hands because it was aiming at something else.