Unintended Consequences

Certainly it would be hard to imagine on one's own that controversy surrounding relatively disgusting products marketed primarily to those with a vested interested in getting as obliterated as is chemically possible, Joose and Four Loco, would greatly affect craft beer.

But shortly after I heard that Joose and Four Loco were being pulled from the shelves if they didn't fundamentaly alter their products, I began wondering about the implications of this FDA intervention.

What about that double imperial coffee stout I enjoy grabbing from Hamilton's every once in a while?

Looks like someone at the NYT had the same thought, and decided to demonstrate it by tracking down someone I know only from her (grating) role in Beer Wars:

Ms. Kallman, a co-founder of the company that makes Samuel Adams, came up with the idea for a caffeinated beer around 2003, when energy drinks like Red Bull were soaring in popularity. She left Samuel Adams in 2000.

“I was looking at what consumers were drinking, and clearly it was caffeinated — look at Red Bull and Starbucks and even Mountain Dew,” Ms. Kallman said during an interview at her home overlooking Cohasset Harbor. Her office, a single desk, sits behind a couch in the living room. She is the company’s only employee.

And while everything from water to energy drinks with caffeine were selling briskly, Ms. Kallman’s amped-up beer was not. She re-introduced the beer in 2006 with more caffeine — 69 milligrams, about twice that of a can of Pepsi — and a bit more alcohol.

Kallman makes the case that, at just 5 percent ABV, her beer is incorrectly
being lumped into a discussion of drinks that are intentionally high in
alcohol and caffeine, which is meant to be the FDA's major concern,
anyway.

For fear of being cute, I can't help but recall her sales pitch to someone in
a bar during Beer Wars that explained Moonshot as "basically the
ultimate party beer."

NYT's writer gives a podium to Jay R. Brooks, a beer blogger who
says other beer dorks (that's you!) consider Moonshot a novelty beer,
but don't think it's very similar to Four Loco:

Mr. Brooks, who vehemently disagrees with the F.D.A.’s action, said that Ms.
Kallman’s beer became unfairly caught up in the regulations.

“There’s nothing about what she’s doing that makes it similar to Four
Loko,” Mr. Brooks said. “She was the dolphin that got snared in the
net.”

Though I don't honestly believe there's such thing as a free market, and I generally accept that the government has a job to do when it comes to ingesting things that might make us sick, I identify with the libertarian leanings of the many beer bloggers who are coming to Kallman's defense.

The target is drinks that are designed to be comsumed in large doses, and that become dangerous when that design is met. But it's nearly impossible to design a regulation that seperates Four Loko from Great Divide's Yeti Imperial Stout.

It's comforting if you're the type of person who drinks the latter to seperate yourself from those who drink the former under a rickety argument that, well, yeah, I drink the Yeti sometimes with the intention of feeling some degree of inebriation, but, ya see, I also am primarily doing it for the taste, so, ya know, it's different. Governance doesn't really work that way.

I'd like to think it'd be easy to set some baseline limits of what constitutes a safe cocktail of alcohol and caffeine, under which responsible parties like Great Divide can flourish and above which Joose cannot operate.

Freely I admit that I don't know much about the science here, and whether that's possible. But I have to ask, what happens if the drink-'till-I-puke, meathead contingent recognizes the loophole, and decides to set its challenge at eight Yeti's in an hour rather than four Four Lokos, and someone dies as a result? What's to say the baseline doesn't just get moved perpetually backward until it isn't a baseline of compliance, but rather a full-scale prohibition?

Ultimately, I think the FDA has little choice but to treat the matter as they treat spray paint, cough syrup, nitrous oxide, and any other number of legal products that can, nonethless, be used in ways other than their intended purpose and lead to physical harm.