A Restriction, Not a Noose

Mitch Morrison, Vice President of Retailer Relations

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A fertilizer plant explosion levels a large patch of a Texas town, killing at least 14 people and causing millions of dollars in damages. The crushing blast is not a surprise. A New York Times story shows that the state of Texas has the ignominious distinction of claiming the country’s highest number of workplace fatalities for most of the past decade. Fires and explosions at more than 1,300 chemical and industrial plans in Texas have cost as much in property damage as those in all other states combined over the five years ending May 2012.

That, in large part, is because Texas has no fire code and minimal safety standards. For a state that prides itself on the sanctities of the wild, wild West and sees virtually any government regulation as unwanted intrusion, there is likely to be little change regardless of the damage and death toll caused by such laxity.

In contrast, New York Republican turned-Independent Mayor Michael Bloomberg seeks to ban or restrict virtually anything he doesn’t like: sugary drinks, tobacco products, etc.

Our industry embraces the free market, one with as little government intervention as possible. At the same time, we want a playing field that is fair. In talking to many of our industry’s lobbyists over the years, I’ve found a governing principle applies: Do the benefits of regulation justify the cost? And is the cost being spread across the broadest population possible?

It’s infuriating when a sin tax is repeatedly imposed or when a proposal’s demands, such as menu labeling, threaten to wipe out the benefits of an entire retail category, such as foodservice.It is in this context that we need to think about caffeine and the growing number of caffeine-enhanced products. In a significant move last month, Wrigley pulled its new Alert Energy Caffeine Gum. In doing so, president Casey Keller touched on company efforts that exceed regulatory requirements on labeling and disclosure laws.

So why kill a legal product? Says Keller, “After discussions with the FDA, we have a greater appreciation for its concern about the proliferation of caffeine in the nation’s food supply. There is a need for changes in the regulatory framework to better guide the consumers and the industry about the appropriate level and use of caffeinated products.

“In an effort to support this process, and out of respect for the FDA, we have paused the production, sales and marketing of Alert. This will give the FDA time to develop a new regulatory framework for the addition of caffeine to food and drinks.“

Over the past two issues of CSP (see p. 58 for the latest installment), news director Steve Holtz has explored the health claims against the highly caffeinated segments of energy drinks and shots, as well as the current issues with sugary beverages. We have examined the health claims leveled against the high-caffeine and high-sugar products; what the beverage industry is contending; and what, if any, role government should assume.

Instinct says to strenuously oppose any regulation that cuts into our rights to make maximum profit. But think again.

Too often, we miss the boat. In the spirit of protecting the free market, we turn a deaf ear to genuine health concerns, and thus we allow health advocates and social activists to dictate the debate and to push for extreme measures that infringe on our customers’ rights to buy, our rights to sell and manufacturers’ rights to produce.

I oppose most bans and curbs, such as Bloomberg’s failed 16-ounce cap on sugary drinks. What I do support and believe our industry needs to embrace is the customer’s right to know. We should endorse clear labeling, including the levels of caffeine and other chemicals in products. This may also mean listing the calorie and sugar counts on fountain beverages.

A more contentious point is age restriction. Just as with alcohol and tobacco, should energy drinks and shots be required to carry age restrictions if they are conclusively shown to be harmful to minors?

The debate is still early, and the choice is ours. We can stand on the sidelines and allow others to determine how and what we can sell. Or we can weigh in and offer sensible solutions that retain our rights to sell and the rights of customers to know exactly what they are buying. 

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