NACS Update: Energy Drink Regulation on Companies’ Minds — If Not Their Lips

“I believe that I need to direct you to someone else to get an answer.”

That ‘this-is-a-delicate-sitch’ response – in this case, delivered by the brand manager of a portfolio of energy drinks from a major U.S. beverage marketer — gave an indication of how carefully companies are handling the issue of a letter to 17 of them from the U.S. Senate Committee on Commerce, Science and Transportation, which had set a deadline of Monday, Oct. 14 for responses.

A good many of those companies were showcasing products on the floor of the NACS (National Association of Convenience Stores) Show, which concluded on Tuesday, so we spoke to as many as we could (it’s a big show) about the committee’s  17-point list of voluntary steps that could be taken to turn down the boil. Some of the brands weren’t there: Rockstar didn’t have a presence, neither did Sambazon or Target/Archer Farms. We were too excited by Pepsi’s commitment to Vanilla Chai O.N.E. to speak with anyone about Amp.

What we found by hanging around the booths – which is what we do at NACS, much to the annoyance of many attempting-to-close-deals booth owners — was that the biggest energy drink companies there, Monster and Red Bull, didn’t want to talk about the letter publicly. At Living Essentials – 5-Hour Energy – there were repeated missed connections with both Scott Henderson and Manoj Bhargava, the President and CEO, respectively. An unnamed 5-Hour employee told us that he was upset the furor over marketing to kids had even touched his company, however.

“We aren’t directed toward kids, we’re not a drink – we’re a shot,” he said. “I let my own mother drink 5-Hour.”

For many energy drink companies interviewed but not quoted, some of the requests by the Senate seemed a bit esoteric compared to their general marketing practices, particularly requests that they not sell or market their products at K-12 schools or include warnings on their labels about age or caffeine levels.

On the more official side of the comment spectrum, both Xyience and Crunk!!! made it clear that they weren’t concerned about having to make adjustments to their youth marketing practices because, they say, they don’t market to youths.

“We’ve already mostly been doing it,” said John Lennon, the president of Xyience, a brand focused on its alignment with the Ultimate Fighting Championship (UFC). “Did it raise our awareness of some things? Yes, and we are looking forward to adjusting in those areas in which we might not have been aware.”

“We’ve taken some steps with packaging to make things clearer to the consumer,” said Jon Gunnerson, the CEO of Solvi, LLC, which owns Crunk!!! and Bawls.

The head of Coke’s Vitaminwater unit – which also oversees the company’s energy drinks, like Full Throttle and NOS, expressed a more guarded willingness to work with the Senate.

“The senators have asked a whole bunch of questions,” Ilan Sobel said. “We’ll be responding over the next few days.”

“We’ll continue to partner with the ABA (American Beverage Association), with government, to do what’s responsible for the industry,” he added.

Coke’s NOS, which once had SKUs that featured some of the highest caffeine levels around, dropped its ratio of that ingredient to the 10 mg per oz. standard at which most other energy drinks tend to hover. That change wasn’t due to regulatory concerns, but was rather based on taste considerations for new NOS sublines, however, according to Lauren Albano, a NOS brand manager.

One sticky area for the products could lie in the hybrid product space, where companies like Monster and Rockstar have “recovery” products that are at least partially marketed for sports use as well as for  wakefulness – Monster has a protein sub-line, while Rockstar also has products that feature branched-chain amino acids, a supplement ingredient popular with the gym crowd. Xyience, as well, has a recovery and electrolyte focused set of products, but those aren’t caffeinated.

As for the Commerce Committee, it’s next move isn’t readily apparent; today, Chairman John D. Rockefeller was busy decrying the government shutdown.