Does government have the power to limit caffeine in food?

Lyle Denniston looks at an FDA review of foods and drinks that contain caffeine consumed by younger people, and how a 100-year-old Supreme Court decision may affect its outcome.

The statements at issue:

"The Food and Drug Administration has announced that, in response to a trend in which caffeine is being added to a growing number of products, the agency will investigate the safety of caffeine in food products, particularly its effects on children and adolescents."

– U.S. Food and Drug Administration, announcement in "FDA Consumer Health Information," May 2013.

"It's a trend that raises real concerns," Michael Taylor, the FDA's top food safety official, said in an interview. "We're not here to say that these products are inherently unsafe. We're trying to understand, what are the right questions to be asking? We have to figure out, what are the right ways to approach this?"

– Excerpts from comment that Michael R. Taylor, deputy FDA commissioner for foods,made to The Washington Post, for a front-page article on June 2.

"The federal government has absolutely no role, none, in governing age restrictions on purchasing products. Everything from drinking ages, smoking ages, to voting ages and drivers' licenses are all handled at the state level. Why suddenly investigate caffeine's effects now after more than fifty years of inclusion in American food and beverage products? … It never ends with the nanny state."

– Nathan Mehrens, general counsel of the advocacy group Americans for Limited Government, reacting on May 11 to the FDA's announcement of its caffeine review.

With caffeine now showing up in everything from frozen pancakes to chewing gum to quick-energy soft drinks, and with federal officials growing worried about that, it may be time to take a new look at an old Supreme Court decision – one that, in fact, will mark its centennial anniversary next February. That was the court's first ruling spelling out the federal government's powers to keep harmful substances out of the nation's food supply.

The 1914 case of U.S. v. Lexington Mill & Elevator Co., was an otherwise unremarkable decision that provided the court's initial interpretation of the first Food and Drugs Act, passed in 1906 and signed into law by President Theodore Roosevelt. The law was designed to stop the sale of "misbranded and adulterated" foods, drinks, and drugs.

Before the court was a government claim that a Nebraska mill had mixed into 625 bags of flour a form of nitrogen gas that made the flour look like it was of a better quality than it really was. At issue was the kind of proof that the government had to offer to show that a food product was being sold without a proper label or sold with some "poison or deleterious ingredient" that might threaten human health.

The Supreme Court decided that, in order to save the 1906 law from being found unconstitutional because it was beyond Congress' legislative power, it was not enough for the government to show merely that an item of food had some other potentially harmful substance added to it. What was necessary, the court said, was that the food in combination with the added substance did have the potential to injure human health.  Any food, it said, might have a bit of something in it that might do harm.

As for the 625 bags of flour, the court added, it was not enough that the gas had changed the appearance of the flour. That was of no more legal consequence, the opinion indicated, than adding water to make flour into gravy, or other ingredients to make bread.

What are the lessons here for the FDA as it ponders whether it wants to issue new controls on foods and drinks that contain caffeine? It cannot simply assume that caffeine is threatening to anybody's health. Since officials seem to be thinking at this point mainly about potential harm to young children, the FDA will have to assemble age-specific health data. And such data will have to show that, if it does produce a chemical reaction that is age-specific, the reaction may negatively affect body chemistry in the young.

As the FDA said last month in announcing its review of the caffeine question, "We need to better understand caffeine consumption and use patterns and determine what is a safe level for total consumption of caffeine. Importantly, we need to better understand the types of products that are appropriate for the addition of caffeine, especially considering the potential for consumption by young children and adolescents."

Already, the FDA said, it has drawn the conclusion that, for a healthy adult, 400 milligrams a day ("that's about four or five cups of coffee") is not likely to have "dangerous negative effects." It has not yet set a similar level for children, it noted.

Thus, the broader challenge to FDA is to decide whether and how to spell out a specific safety standard for children, before it can then turn to the question of how to enforce such a standard. The enforcement options might be no more intrusive for the food and beverage industries than to require them to post caffeine levels on the labels of foods and drinks likely to be consumed by children. But, more aggressively, the FDA might decide that it has to compel an industry to take some products completely off the market.

"If the scientific evidence indicates that it is warranted," the FDA said, "we are prepared to go through the regulatory process to establish clear boundaries and conditions on caffeine use."

If, at the end of the process that is just now beginning, what the FDA does looks to critics like another bad example of "the nanny state," then the courts are likely to be drawn into that controversy. And that, of course, will draw the lawyers and the judges back to re-reading what the Supreme Court said almost 100 years ago.

Lyle Denniston is the advisor on constitutional literacy for the National Constitution Center. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.