The Legislative Control of Energy and Sports Drinks
Although sports and energy drinks are not anew introduction, the market for them has grown over recent years. This growth hassomewhat preceded any changes in legislation to regulate these products. As is often thecase with new trends, the legislation of foods marketed as being high in energy orintended for sportsmen lags behind the successful marketing of these products. There are,however, moves within the major countries to recognise the arrival of these products onthe market and ensure that they are safe for consumption without misleading the consumeras to their benefits and properties. In some countries, this manifests itself through theregulation of the claims that often accompany these products.
The Codex Alimentarius Commission, the foodstandards arm of the World Health Organization (WHO) and the United Nations Food andAgriculture Organization (FAO), is one organisation that has recognised the need toregulate sports and energy drinks. The Commission, charged with the task of implementingthe joint FAO/WHO food standards programme, noted that such products are now widelyavailable and sold with a variety of claims attached. The Codex Committee on foodlabelling, a subgroup of the Commission, has decided that such claims, if not suitablycontrolled, may be confusing to the consumer. So, at this time, the primary concern is notthe product composition - although other Committees will deal this with in due course -but the claims made in association with the product.
The proposed recommendations, currentlyunder consideration by the food labelling Committee, would establish definitions forsports drinks, including isotonic and hypertonic sports drinks, based on their osmolality.An energy drink would be defined according to its energy value, where claims for 'energy','high energy' and 'source of energy' would be regulated. The recommendations also intendto define the product known as a 'smart drink' as a drink that contains added vitamins andminerals, but which also contains various other permitted ingredients, such asglucoronolactone. Owing to feedback from the Codex members on this proposal, therecommendations are to be redrafted and circulated again for further consideration.
At European Community (EC) level,legislation on sports and energy drinks is no further advanced than at Codex level. Atthis level, the primary concern is not the use of claims relating to such products, asthis is covered by national legislation laid down in the European Union (EU) MemberStates, but the safety of various components in such products.
In an Opinion, issued in January of thisyear, the Scientific Committee on Food, an advisory body to the Commission, discussed thepotential risks to health from the use of certain substances used in energy drinks. Therecent market growth in Europe of energy drinks is reflected in the Committee's relianceon estimated quantities of consumption. Based on these estimates, the Committee concludedthat the overall caffeine intake by adults contributed by energy drinks is not a cause forconcern, but that problems may arise due to intake by children. For taurine andglucoronolactone, two substances that appear naturally in the diet but at levels lowerthan those added to energy drinks, the safety of these substances at levels added toenergy drinks could not be established, and further studies should be carried out.
It is worth noting that specific provisionsare to be drawn up on foods intended to meet the expenditure of intense muscular effort,especially for sportsmen. Hence, depending on the marketing of the product, a sports drinkmay be subject to Community requirements on foods for particular nutritional uses. Todate, however, only an initial draft laying down potential categories of sports foods andthe basis for their requirements has been issued, and is still under discussion.
Within the EU, marketing of such productsis subject to the varying requirements of national legislation. In a 1996 opinion onenergy drinks, the Conseil Supérieur d'Hygiène Publique de France (CSHPF) expressed itsconcern about the marketing and advertising of such products, and outlined the reasoningbehind its view that such drinks should not be authorised. These included the risksassociated with a high caffeine intake and false claims relating to the product. Thefollowing year, the French authorities issued an opinion concerning the use ofunauthorised nutrients used in energy drinks and their raised caffeine content. As aresult, such drinks may not be marketed in France. In the UK, such restrictions do notexist, although there are guidelines on the maximum level of caffeine in soft drinks. Anenergy drink may therefore be marketed in the UK provided that it meets all the generalrequirements laid down in the Food Safety Act. Any claim appearing on the product is alsoregulated by restrictions on nutritional claims.
As in the UK, control of energy and sportsfoods in the USA exists through the legislation on the labelling of foodstuffs. In theUSA, any major problems in marketing a sports or energy drink is most likely going toarise as a result of the use of claims on the label - specific requirements on when aclaim can be used exist. Despite the wide range of claims regulated by the Food and DrugAdministration, there is no specific definition for energy in terms of an increased-energyfood. Until the use of claims relating to high energy content is regulated, thepossibility of misleading the consumer exists.
The legislation in the major marketsworldwide still has some way to go before regulating the marketing of sports and energydrinks. The lack of specific legislation on either the composition of such products or theuse of claims, such as high energy, means that, provided the product is safe forconsumption and that the consumer will not be misled, the product should be acceptable forsale. There are, however, discrepancies between individual countries on what is consideredacceptable. France, for example, does not allow for the marketing of sports and energydrinks based on their composition. In many other countries, the problems lie not in thecomposition (although this does not mean that dangerously high levels of substances oringredients that may cause harm may be used) but in how the product is marketed. Withoutsufficient legislation, the difficulty for the manufacturer is determining whether theirclaims as to the properties of the product may be construed as misleading the consumer.
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