Cardiac arrests are bad for business, unless your business is for-profit ambulancing, or… erm, no, that’s about it. They’re certainly not good for Panera’s business. Over the past few months, the fast-casual chain has found itself on the receiving end of a couple wrongful-death lawsuits related to its line of “Charged Sips” — flavored lemonades that filing attorneys allege were insufficiently labeled as potent caffeinated beverages, resulting in the fatal heart attacks of their respective clients.
Panera has revised the formula of the colorful, caffeinated drinks, and affixed impossible-to-miss labels highlighting their caffeine content, and has said it “stand[s] behind the safety” of the beverages. The Food and Drug Administration, for its part, announced it was gathering information on the product in October, after the first suit was filed. Your humble Hop Take columnist will leave questions of Charged Lemonade’s legality and culpability to be sorted out by the American justice system. Instead, let’s you and I consider some of the historical context in which this saga unfolds.
Charged Lemonade is a non-alcoholic beverage and, as far as I know, Panera has yet to try to ford the alcohol-by-volume Rubicon with a hard-drink spinoff of any of its popular beverages. But that’s not for lack of precedent. For the past couple of years, brands from all over the consumer packaged goods landscape have rolled out beverage-alcohol line extensions to capitalize on American drinkers’ rising omibibulousness. Fast-casual brands, too: Sonic has a hard seltzer, Bojangles has a hard tea, and Dunkin’ has one of those, plus a hard coffee, too.
So as the market converges on “total beverage,” and memes about adding alcohol to Charged Lemonade flood TikTok and Instagram, I thought it’d be instructive to reflect on how another caffeinated beverage — this one alcoholic — rode a lucrative wave of pop-cultural cachet and morbid curiosity straight into the feds’ field of vision.
In the mid-aughts, Four Loko hit college campuses across these United States like a freight train made out of camouflaged tallboys. In its original formulation — developed by a group of former frat brothers and sold by the company they formed, Phusion Projects LLC — the flavored malt beverage contained 156 milligrams of caffeine per each 23.5-ounce, 12-percent alcohol-by-volume can. The idea of spiking caffeinated beverages with booze, or even packaging it up in a beer-like format, wasn’t new when Four Loko first started showing up on store shelves near America’s college campuses. Irish coffee has been around since the 1940s, Red Bull-vodka since the late ‘80s; Sparks, a Four Loko-forerunning FMB-plus-caffeine brand, since 2003.
But primacy is no match for potency and publicity. As someone who came of drinking age squarely within Four Loko’s caffeinated reign, I can say with some authority that its ascendance to the summit of Mount Olympissed derived as much from its fruit-punch-you-in-the-mouth properties as a liquid as from the aura of illicit danger that coalesced around its brand. How is this legal? How many can I drink before I black out? I knew someone who knew someone who died after three.
I didn’t know such a someone personally, but they existed, a few times over. As original-formula Four Loko careened towards a record-high $144 million in sales in 2010 (its last year on the market), it also wound up implicated in “several deaths, at least one instance of gang-related torture, and has contributed to alcohol poisoning and in many cases hospitalization of teenagers and college students at several campus parties,” according to a report in Time Magazine from November of that year. By then, many colleges and some entire states had levied bans on Four Loko. The FDA’s then-principal deputy commissioner, Dr. Joshua Sharfstein, had seen enough.
The agency first began looking at Four Loko in 2009, and only took decisive action on it in late 2010. “It took a whole year of review,” Sharfstein told me earlier this year on VinePair’s Taplines podcast, describing the methodical information-gathering process on the product he oversaw at the FDA as its second-highest-ranking official. (Like, review, and subscribe, wouldja?) With the backing of over 20 bipartisan state attorneys general, the Centers for Disease Control and Prevention, and the Alcohol and Tobacco Tax and Trade Bureau, Sharfstein issued a warning letter to Phusion Projects and a few other firms marketing similar products in late November 2010, advising that FDA believed their addition of caffeine to alcohol did not meet the legal standard “generally recognized as safe,” or GRAS. “We couldn’t look ourselves in the mirror and say adding large amounts of caffeine to alcohol, given this evidence, was safe.” It wasn’t a ban, but the writing was on the wall. The company pulled original-formula Four Loko and reformulated it shortly thereafter.
Caffeine is considered GRAS in non-alcoholic beverages like Panera’s Charged Lemonades. But there are some key differences between those products and, say, a Monster energy drink, that make them “exceptional,” as Jennifer Temple, director of the Nutrition and Health Research Laboratory at the University of Buffalo in New York, told The Washington Post last week. For one, before Panera reformulated Charged Lemonades, a 30-ounce “large” contained 390 milligrams of caffeine, roughly four times a standard cup of coffee. (That figure now stands at 219–237milligrams, depending on the flavor.) The serving sizes themselves are enormous compared to other energy drinks, and the dispensing mechanism — a soda fountain — is potentially limitless, and literally so for paying members of Panera’s “Unlimited Sip Club.” “I can’t think of another example where you can kind of self-dispense an energy drink,” Temple added.
How the suits against Panera (the first of which was filed in October, and the second last week) proceed, and whether FDA’s scrutiny materializes into formal action, remains to be seen. But in the meantime, people be posting. Four Loko’s caffeinated reign ended the same year Instagram launched, and memes had yet to break out of niche forums like Something Awful, 4chan, and Reddit as the lingua franca of the platform-based internet. Its popularity grew mostly by word of mouth, and maybe Facebook albums. Charged Lemonade’s unfortunate moment in the limelight, on the other hand, is occurring squarely in the era of mainstream meme culture, smartphones, and — especially relevant for our purposes here at Hop Take — blurred category lines between soft and hard drinks. So of course people with irony poisoning and a taste for FMBs are fantasizing on social media about spiking “the death lemonade” with alcohol. You can see where this is headed.
As Sharfstein told Taplines about his deliberations over Four Loko back in 2010: “When people see something for sale, they think that at some level, it’s OK. If there was a big problem with this, somebody would have taken it off the market, that type of attitude.” The opposite was true, too: As me and my shithead friends learned there was a problem with Four Loko, we stockpiled it to hedge against it eventually being taken off the market. (We weren’t the only ones.) Thirteen years and entirely too much internet later, those impulses of colorful self-destruction and morbid curiosity are supercharged by the performative dynamics of the social internet. More people will seek out “the death lemonade” to see what all the fuss is about. A few of them will probably mix it with White Claw, or vodka, or grain liquor. They may even upload a recipe video to the moral-panic machine known as TikTok.
None of that would be Panera’s fault, nor within the firm’s control. But it would definitely bring more scrutiny from concerned parents, lawmakers, and regulators. And as the Icarus myth of original-formula Four Loko taught us, that wouldn’t be great for business, either.
🤯 Hop-ocalypse Now
After helping to amplify and galvanize conservatives’ transphobic temper tantrum over Bud Light’s relationship with Dylan Mulvaney in the heady days of early April by shooting cases of the beer with an AR-15, performer Robert James “Kid Rock” Ritchie is singing a different tune these days. In an interview with involuntarily retired Fox News race-baiter Tucker Carlson earlier this week, Ritchie said Anheuser-Busch InBev has “got[ten] the message,” and right-wing reactionaries ought to get “back on board” with its flailing flagship brand. “You don’t spank them for the rest of their life,” he said, just like any other normal and well-adjusted person might. An ABI spokeswoman declined to comment, and frankly, in this one instance, I get it.
📈 Ups…
Despite a very tough year, the Brewers Association’s annual report notes that drinkers spend 25 percent of their beer dollars on craft brews… White Claw’s non-alcoholic hard seltzer (so, seltzer) will hit shelves in January 2024… Bell’s Brewery will take its Hazy-Hearted IPA nationwide next year… Brewbound’s eagle-eyed newsletter editors spotted what may be Firestone-Walker’s entry to the NA beer game… Puerto Rico’s craft brewers are struggling just like mainland colleagues, but export values are way up year-over-year…
📉 …and downs
Also according to the BA’s 2023 report, the U.S. craft beer segment posted its first non-Covid-related volume decline this year… After a summer buying bonanza, Tilray Brands’ exec Ty Gilmore says the firm is fielding 2–3 calls a day from craft breweries hoping to sell… At -10.8 percent, October 2023 marked the eighth straight month of negative beer tax-paids… Beer led alcohol price inflation at home in November, up 2.7 percent (but hey, at 5.2 percent, it trailed wine and spirits on-premise at least?)
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