The moral of this story? Nothing new really. We know what we’ve always known. Caffeine plus alcohol doesn’t equal sober. But it doesn’t equal a private right of action under the FDCA either.
In old movies, everybody seemed to use coffee to sober-up a friend who’d had too much to drink. (The only other option, if our movie-memory is correct, was a bucket of ice water.) Do you remember “Dead Men Don’t Wear Plaid” – an old movie about older movies? Steve Martin played a Sam-Spade-like detective who made “a cup of my java” for anyone who was drunk. Apparently it would sober them up. But he didn’t brew it quickly enough to get Burt Lancaster up and moving in this scene.
Now, we all likely understood that coffee really didn’t help. That’s only in the movies. In reality, the most it might do is turn a drunk into a suddenly wide-awake drunk.
In the last few years, caffeine and alcohol have been mixed in a single drink, the recently popular alcoholic energy drinks. And they have sparked litigation. In Cook v. MillerCoors, LLC, 2012 U.S. Dist. LEXIS 73205 (M.D. Fla. May 25, 2012), the plaintiff was injured in a motorcycle accident in which the motorcyclist was drunk from alcoholic energy drinks. The plaintiff sued the drink manufacturer, asserting design defect and failure to warn claims (a negligent manufacturing claim had been dismissed previously). Id. at *1-5.
There isn’t much that is new in the decision. But it is helpful because it reinforces a longstanding principle about private rights of action under the Food, Drug and Cosmetic Act (FDCA) – they don’t exist.
The court dismissed plaintiff’s design defect claim because, in short, consumers understand the dangers of alcohol and so it’s not unreasonably dangerous, and the motorcyclist’s decision to drink, not the manufacturer’s actions, was the proximate cause of the plaintiff’s injuries. Id. at *6-11.
Plaintiff’s failure to warn claim is where the FDCA comes in. The court determined that the manufacturer had no duty to warn because everybody already knows that consumption of alcohol can be dangerous:
Generally, however, a manufacturer does not have a duty to warn consumers of dangers which are obvious or commonly known. . . . Because the dangers associated with alcohol consumption are very well known, courts have usually found that alcohol manufacturers and retailers do not have a duty to warn consumers about the risks posed by the excessive use, or prolonged use of alcohol because those risks are common knowledge.
Id. at *12-13. The court was not convinced that the addition of caffeine to the drink somehow obscured this understanding. Id. at *14.
So plaintiff looked to the FDCA and FDA regulations to save her claim. She alleged that adding caffeine (and guarana, another additive) to an alcoholic drink violated FDA regulations. Id. at *14-15.
The defendant denied this was true but, more important, argued that, even if it were true, it wouldn’t matter. Id. at *15. As we discussed in our recent post about pomegranate juice, only the FDA can enforce its regulations, not private citizens and attorneys in courtrooms. The Cook court agreed:
Where the substance of a plaintiff’s claims seeks to assert a private right of action under the FDCA, they must be dismissed. If a defendant’s conduct would not expose it to liability but for the FDCA then the plaintiff is effectively suing for a violation of the FDCA (no matter how the plaintiff labels the claim). Thus, [plaintiff’s] allegations regarding the FDCA are of no moment.
Id. at *15. The court dismissed plaintiff’s complaint with prejudice. Id. at *19.