In a New Aisle, Energy Drinks Sidestep Some Rules

Daniel Rosenbaum for The New York Times

Monster Beverage Corporation threatened to sue Deborah Kennedy, a nutritionist, after her newsletter stated that children had died from energy drinks.

Fans of Monster Energy, the popular high-caffeine energy drink, may not notice the change: its ingredients will be the same and its familiar label bearing a green, clawlike monogram will change only slightly. But the drink’s maker has decided after a decade of selling it as a dietary supplement to market it as a beverage, a switch that will bring significant changes in how it is regulated.

Among them: Monster Beverage, the nation’s biggest seller of energy drinks, will no longer be required to tell federal regulators about reports potentially linking its products to deaths and injuries.

The company’s recent move, which follows a similar regulatory makeover by another brand, Rockstar Energy, comes amid intensifying scrutiny of energy drink safety. On Tuesday, a group of 18 doctors and researchers sent a letter to the Food and Drug Administration urging it to take action to protect adolescents and children from the possible risks of high caffeine consumption. “There is evidence in the published scientific literature that the caffeine levels in energy drinks pose serious potential health risks,” the researchers wrote.

Monster Beverage’s new cans will also disclose caffeine content for the first time. A 16-ounce can of Monster’s most popular energy drinks will contain 140 to 160 milligrams of caffeine, compared with about 330 milligrams in a 16-ounce cup of Starbucks coffee.

The company is fighting back against critics on several fronts. This month, it held a news conference to dispute accusations in a lawsuit that the death of a 14-year-old girl was linked to high caffeine levels in Monster Energy. Separately, it threatened to sue a nutritionist who publishes a newsletter for elementary schools for statements that it said were defamatory.

The changes by Monster and Rockstar demonstrate the degree to which energy drink manufacturers can decide which rules to follow.

“We don’t have energy drinks defined by any regulation,” Daniel Fabricant, director of the F.D.A.’s dietary supplement division, acknowledged in an interview in October.

For a decade, Monster sold its products as dietary supplements, apparently as part of a strategy to convince consumers that they were different from beverages. But the company, like its competitors, has run into a spate of bad news, including the disclosure in October that the F.D.A. had received reports in recent years that mentioned its drinks in connection with deaths and injuries.

Since then, the F.D.A. has received three more death reports and 14 injury reports that cite Monster energy drinks, an F.D.A. spokeswoman, Tamara Ward, said in an e-mail. In recent months, the agency has also received added reports about other energy products; since October, for example, it has received 38 reports that cite the popular energy “shot” 5-Hour Energy, including five involving a death.

The mention of a product in an incident report filed with the F.D.A. does not mean the product played a role in a death or injury, and such reports may provide few details. Monster Beverage and the maker of 5-Hour Energy have insisted that their products are safe and unrelated to the reported episodes.

A spokesman for Monster, Michael Sitrick, said the company had decided to market its products as beverages for several reasons. One was to stop what he described as “misguided criticism” that the company was selling its energy drinks as dietary supplements because of the belief that such products were more lightly regulated than beverages. Another consideration, he said, was that consumers can use government-subsidized food stamps to buy beverages.

“Monster Energy drinks could equally satisfy the regulatory requirements” for either category, Mr. Sitrick said.

An executive vice president at Rockstar, Joseph Cannata, said the company had made the change because consumers found food labels easier to read. In January, all production of Rockstar energy drinks switched to those labels, he said.

A lawyer who represents supplement makers, Justin J. Prochnow, said companies like Monster and Rockstar might have had another incentive. Over the last two years, the F.D.A. has intensified its scrutiny of the supplement industry’s manufacturing practices, driving up production costs.

As beverage producers, Monster and Rockstar will face some reporting mandates, including some that are stiffer than the mandates for supplement makers. Such companies are required to notify the government when they think a product could cause injury, a rule intended mainly to limit the distribution of tainted food. In addition, they are required to maintain scientific data supporting the safety of any ingredients they use that are not already cleared by the government. They can also voluntarily notify the F.D.A. about adverse events possibly affecting individual consumers, a step Monster Beverage said it planned to take.

Mr. Sitrick said Monster’s move to list caffeine content followed its decision to join the American Beverage Association, an industry trade group, which urges member companies to make such disclosures. He estimated that half of the company’s products would list caffeine content by April, and 90 percent by May.

In a recent filing with the Securities and Exchange Commission, Monster Beverage, which is based in Corona, Calif., said that negative media reports about energy drinks had created “softness” in demand. Its stock, which traded for $83.96 last spring, closed at $49.72 on Tuesday, a decrease of more than 40 percent. Rockstar is privately held.

Posted in: World business