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Bill would ban sale of energy drinks to teens

Kevin I. Goldberg has lobbied for legislation before as president of the Maryland Association for Justice Inc. But he says his backing of this session’s bill to ban the sale of energy drinks to minors is unique for a trial lawyer.

“Usually we don’t get the opportunity to save lives,” Goldberg said.

The legislation would make Maryland the first state in the nation to prohibit the sale of energy drinks to minors and is modeled after laws banning the sale of tobacco to minors, he said.

The bill’s lead sponsor is Del. Kathleen M. Dumais, D-Montgomery, a lawyer and vice chairwoman of the House Judiciary Committee. But Goldberg, of Goldberg, Finnegan & Mester LLC in Silver Spring, helped write the legislation, which was introduced last week in the House of Delegates.

Under House Bill 1273, first-time violators of the sales ban would face a $500 fine, an amount that goes up to $2,000 for a third violation in two years.

The bill would also prohibit giving minors free samples, or coupons for free samples, of energy drinks. Those penalties are far harsher: First-time violators would face a $5,000 fine, going up to $20,000 for a third violation within two years.

Goldberg represents the family of Anais Fournier, a 14-year-old Hagerstown girl who died in December 2011 after consuming 48 ounces of Monster Energy drinks in a 24-hour span.

Fournier’s parents alleged the drinks provided the caffeine equivalent of 14 12-ounce cans of Coca-Cola and led to her death from a heart attack. They filed suit against Corona, Calif.-based Monster Beverage Corp. in October 2012 in California, claiming the company should be held strictly liable for failing to warn consumers of the potential danger of their product and concealing the possible hazard when labeling and packaging the drink, and in marketing that was directed at teenagers and young adults.

“We believe strongly she died from drinking Monster Energy drinks,” Goldberg said.

Katy Perry

In this undated photo, performer Katy Perry holds a Monster Energy drink. (Photo via Creative Commons)

Monster Beverage has denied its drinks “are in any way responsible” for Fournier’s death. The lawsuit was filed in Riverside, Calif., Superior Court, where it is now awaiting a trial date, according to Goldberg.

Since filing the lawsuit, Goldberg said, he has been getting calls from across the country about young people who allegedly have died after consuming energy drinks. The law firm has filed three additional lawsuits on behalf of surviving family members.

The American Academy of Pediatrics has recommended adolescents not consume energy drinks because the caffeine can cause cardiovascular problems, anxiety and digestive problems, among other issues.

Stacy Fisher, director of the complex heart disease program at the University of Maryland Medical Center, takes care of the first generation of adults who had surgery as children to correct congenital heart defects. Her patients have had adverse reactions to energy drinks, so she is concerned about children who might not know they have a heart condition consuming energy drinks.

“This culture has intrinsic dangers to the people who are vulnerable,” she said.

Monster Beverage referred questions about the legislation to the American Beverage Association, which referred questions to the Maryland-Delaware-D.C. Beverage Association. Ellen Valentino, executive vice president of the regional group, said most energy drinks contain half the amount of caffeine as a similarly sized cup of coffee.

“We believe legislation and policy should be based on facts and science, and this bill is based on neither,” she said.

Jeff Zellmer of the Maryland Retailers Association called the legislation “a bad bill.”

“They haven’t shown it’s been detrimental to anybody at this point,” said Zellmer, the association’s vice president of government relations.

While Maryland would be the first state with an energy drink ban, it is not the first legislative body to take up the issue, Valentino said. The Los Angeles City Council currently is considering a similar ban, while prosecutors in San Francisco and New York are looking into whether energy drink makers market to children.

The U.S. Food and Drug Administration does not regulate caffeine limits in energy drinks but has been investigating the drinks since November 2012. Last month, the agency released several “guidances” to help manufacturers determine whether their product should be labeled as a beverage or a dietary supplement, the latter of which are not regulated as strictly.

“The FDA is issuing these guidances to clarify legal requirements in the face of growth in the marketplace of beverages and liquid dietary supplements that contain novel substances such as botanical extracts or other botanical ingredients,” the agency said in a statement.