The regulatory ‘loophole’ that lets companies sell alcoholic drinks containing caffeine

Cans of FCKD UP on display. Global News

CORRECTION: The original version of this story implied that the discontinued beverage FCKD UP contained high amounts of caffeine. According to Health Canada, it only contained less than a milligram of caffeine per can. Also, the caffeine content of energy drinks is capped at 180 mg per serving. The story has been altered to reflect this.

Health Canada warns against mixing caffeinated energy drinks with alcohol, but some pre-mixed alcoholic drinks containing caffeine are still sold in Canadian stores.

This is due to a “loophole” in the regulations that allows flavourings that contain natural caffeine, experts say, and they hope that it will be closed soon.

The issue of alcoholic drinks with caffeine was in the news this week, after one was reportedly linked to the death of a 14-year-old girl in Laval. The body of Athena Gervais was pulled from a stream near her high school last week, and La Presse reported that she had been drinking stolen cans of a drink called FCKD UP, which contained 11.9 per cent malt liquor, with added guarana and sugar.

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Police are awaiting the results of an autopsy to determine her exact cause of death. But after the reports, the manufacturer of FCKD UP, Geloso Group, said it will no longer make the drink. Politicians and health advocates, including Quebec’s public health minister, have called on Health Canada to review how sweetened alcoholic drinks with caffeine are regulated.

However – Health Canada notes that FCKD UP actually contains very little caffeine, less than a milligram, which is vastly less than a cup of coffee. Their concern lies more with these kinds of beverages’ high alcohol content, their sweetness and the serving size of the can. Health Canada says that it is working with Quebec on the issue and is reviewing large volume, single-serve alcoholic beverages to assess their safety.

WATCH: Quebec beverage maker Geloso Group announces end of FCKD UP drink

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Quebec beverage maker Geloso Group announces end of FCKD UP drink

In response to questions from Global News, Geloso Group, which still sells some sweet alcoholic drinks with 10 per cent alcohol and added guarana, said that all of its products are 100 per cent legal. But, it wants to have a roundtable with industry, retail and government to discuss issues related to these drinks, such as pricing, recloseable containers, and ways to reduce minors’ access to drinks.

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Health Canada also issued a reminder on Wednesday, telling people that they shouldn’t mix caffeine and alcohol. Here’s what you need to know.

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Added caffeine vs. natural caffeine

Health Canada has repeatedly told Canadians not to mix energy drinks and alcohol. So then, why are pre-mixed energy and alcohol drinks on the shelves? According to the rules, it’s the exact source of the caffeine that matters.

According to Health Canada, the Food and Drug Regulations prohibit adding caffeine to alcoholic beverages. But, some alcoholic beverages are allowed to have “flavouring ingredients” like guarana and coffee that naturally contain caffeine.

It’s also ok to have a pre-mixed beverage, like a canned rum and coke, where the soft drink normally contains caffeine as a food additive.

Health Canada says that flavouring agents, including those with natural caffeine, don’t have regulatory limits on how much can be added. Instead, it says the amount is limited by their “palatability.”

Does this distinction make sense?

Not according to Audra Roemer, a PhD student at the University of Victoria’s Canadian Institute for Substance Use Research, who has published studies looking into energy drinks and alcohol.

“As far as I know, and based on the research that I have done, it still comes down to the amount of caffeine that’s getting consumed and the effect that that has on the body, and whether that results in individuals consuming more alcohol or engaging in riskier behaviours,” she said.

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She hasn’t seen much evidence that the exact source of the caffeine matters – whether it’s a direct caffeine additive or naturally entering the drink through guarana, which depending on how it’s prepared, can contain up to four times as much caffeine as coffee.

“It’s a loophole, I guess, that people take advantage of to circumvent the Health Canada guidelines,” said Robert Mann, a senior researcher at the Centre for Addiction and Mental Health.

“Certainly we’re concerned enough about this issue that government has taken steps to say that we don’t want to sell these beverages. So if a loophole has been found then it makes sense to look into closing it.”

Geloso Group says that it isn’t getting around regulations as its products are legal. However, the company said that just being legal wasn’t good enough in the case of FCKD UP, and that’s why it stopped making it. It’s open to discussions on the best path forward to ensure the safety of minors.

Mann hopes that this tragedy leads to greater scrutiny. Every time there’s a tragic event, it underscores the need to re-examine the regulations around these products, he said.

Why is it dangerous to mix alcohol and caffeine?

It’s worth noting why experts say mixing energy drinks with alcohol is a bad idea.

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Health Canada recommends against the practice and requires caffeinated energy drinks to have a label warning against it on the can.

According to Roemer, there’s a good reason for this. She wrote a review of studies on the subject which found a link between consuming energy drinks with alcohol and an increased risk of injury, compared to just drinking alcohol alone.

WATCH: Alcohol and energy drinks don’t mix

Click to play video: 'Alcohol and energy drinks don’t mix'
Alcohol and energy drinks don’t mix

Although she says there still needs to be more research on why exactly the combination increases these problems, so far, she thinks it’s because the stimulating effects of caffeine help to conceal the depressive effects of alcohol.

“Typically, when we drink alcohol, at some point we start to get sleepy or we want to go home, we fall asleep or want to stop drinking. When you mix it with high amounts of caffeine it sort of masks that,” she said.

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People are awake, so they might drink more, she said. And they might think that they’re less intoxicated than they are, so they are more prone to engage in risky behaviours – like driving – that could lead to injury.

These drinks are also typically consumed by people aged 16-25, she said — a group that tends to drink more alcohol and be in places like nightclubs, where there is a higher risk of injuries.

Research from CAMH found that 23 per cent of Ontario Grade 12 students in 2015 reported mixing alcohol and energy drinks in the past year.

“It seems to be a relatively common practice among young people and that’s something that’s very concerning,” Mann said. He also says it appears that the drinks are being marketed to young people.

Is mixing alcohol and energy drinks worse than a boozy coffee or rum and coke?

Roemer thinks so. “I think the more important thing is the amount of caffeine,” she said. Although the caffeine in Canadian energy drinks has been capped at 180 mg, similar to an 8 oz. cup of coffee, people are more likely to drink several energy drinks mixed with booze than several Irish coffees.

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Pre-mixed alcoholic drinks with guarana are also sometimes really big, meaning more alcohol in one giant can. Some products contain more than three standard alcoholic drinks in one serving, according to Health Canada.

“When we think about the dose, a drink like that probably has higher levels of alcohol as well as high levels of caffeine and the combination of those two is what we think is risky. And because it’s all in one can and it’s sweet and sugary it’s more likely to be completed and drunk fairly quickly,” Roemer said.

— With a file from the Canadian Press

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