High-alcohol-content flavored alcoholic beverages (supersized alcopops) should be reclassified to reduce public health hazard

ABSTRACT

In the US, underage drinkers often consume supersized alcopop – a high-alcohol-content, ready-to-drink flavored alcoholic beverage that is currently regulated as beer. However, calculations in this paper illustrate how the high alcohol by volume and low price of supersized alcopops suggest that they rely on a larger proportion of additives for their alcohol content than permitted to meet the legal definition for beer. From a public safety perspective, it is urgently important that the Alcohol and Tobacco Tax and Trade Bureau assess the formulation of supersized alcopops – specifically, the percent of alcohol in the finished product that is derived from additives. Appropriate reclassification of supersized alcopops as distilled spirits would reduce youth access by resulting in increased price and reduced availability at the retail locations where youth most often obtain alcohol.

KEYWORDS:

• Flavored alcoholic beverages (FAB)
• flavored malt beverages (FMB)
• Four Loko
• wine coolers
• supersized alcopops
• alcohol reclassification

Background

Flavored alcoholic beverages (FABs), such as wine coolers, were introduced in the US in 1980 (1). These products, e.g., Smirnoff Ice, Mike’s Hard Lemonade, and Bacardi Silver, are a hybrid of alcohol and flavorings, such as juice and cola, that have been long criticized for being a product designed to help transition young people from novice to regular drinkers (1). Before FABs were introduced to the market, the only types of alcohol available for sale in the US were traditional beer, wine, and distilled spirits products (1).

Rather than creating a new product class for FABs, for more than three decades the Alcohol and Tobacco Tax and Trade Bureau (TTB) has regulated them as beer, despite their distinct ingredients, taste, and marketing. Manufacturers have a financial interest in having FABs classified as beer because (a) states tax beer at significantly lower rates than distilled spirits (2–4) and (b) beer can be legally sold in more retail locations, such as convenience stores and gas stations, rather than being restricted to liquor stores in many states (1,4).

To avail themselves of these incentives, FAB manufacturers use a complex production process that bears little resemblance to those used to produce other beer products. The FAB manufacturing process begins with a beer base (1,4). However, FAB producers remove much of the beer flavoring, coloring, and alcohol – because it has an unpleasant taste that is difficult to mask – and add distilled spirits (1). As a result, FABs do not contain the flavor, appearance, or relatively low alcohol content that is characteristic of beer (1,4). Yet, industry lobbying has resulted in their continued classification as beer, despite alcohol industry acknowledgment that FABs are a distinct product line designed to attract new drinkers (1).

In 1996, the Bureau of Alcohol, Tobacco, and Firearms (ATF) stated that according to current federal law FABs that contained any alcohol from added distilled spirits should be classified as distilled spirits (5). A 2002 study by the ATF found that the majority of FABs contained far greater quantities of alcohol from distilled spirits and other additives than the original beer base (6). For more than 92% of the FABs tested, over 75% of the alcohol was derived from additives (6). Thus, the majority of FAB products were misclassified, thereby allowing their manufacturers to exploit tax codes.

Rather than reclassifying these products as distilled spirits, alcohol industry lobbying efforts resulted in the establishment of a new, far more lenient legal classification for FABs (1). The TTB released TTB TD-21, effective 3 January 2006, which allowed distilled spirits to be added to products classified as malt alcohol (6). TD-21 allowed for FABs with less than 6% alcohol by volume (abv) to continue to be classified as FABs if they contained no more than 49% of their alcohol content from additives; the majority of the alcohol content (51%) had to come from the malt base (6). However, there was a lower threshold for higher abv FABs. As Coors Brewing Company pointed out in their public comments, extending the 49% threshold to malt beverages with abv greater than 6% would facilitate the production of extremely high-strength malt beverages at breweries (6). Therefore, for FABs with more than 6% abv, the ruling allowed for a maximum of 1.5% of the volume of the finished product to be alcohol from additives  (6).

Nevertheless, a circular released by the TTB in 2008 stated that they were aware that some brewers and manufacturers were noncompliant even under the new, more lenient legal classification of FABs that the industry had lobbied for a few years prior (7). Although TTB was aware of industry noncompliance, it does not appear that the TTB has taken any enforcement actions since 2008 as all of the leading FAB products are still classified as malt alcohol today. This raises questions as to whether lobbying efforts on the part of FAB producers have been successful in hindering enforcement by the TTB. Regardless, the legal and financial incentives described herein remain in place today (2,3,7).

Manufacturers’ production process and industry lobbying efforts seem to have subjugated and shaped federal law enforcement to allow FABs to remain misclassified as beer, which makes these products more affordable and accessible to youth (1). This is a significant public health concern because (a) accessibility and price are two chief factors associated with adolescent consumption of alcohol (8,9) and (b) these products are formulated and marketed to be attractive to novice or first-time drinkers (1). Moreover, the failure of the TTB to appropriately classify FABs allowed them to morph into more hazardous “supersized” alcopops more than a decade ago (10). Supersized alcopops are single-serving alcohol products that contain sugar-sweetened flavors similar to traditional FABs (10,11). However, some supersized alcopops have the alcohol content of more than five standard drinks in one single serving can (11). By comparison, a standard beer has 5% abv and is 12 ounces – roughly one-half the volume and one-third of the abv of some supersized alcopops (4). Evidence suggests that, because of their high alcohol content, these products are especially dangerous for youth consumption (12–16). Despite manufacturers receiving a letter from 17 State Attorneys General requesting that the alcohol content be lowered, it has continued to increase (11,17,18); in 2016, these manufacturers began introducing 14% abv products, i.e., with 17% more alcohol than the previous 12% abv products.

A large proportion of underage drinkers have reported consuming supersized alcopops (14,19). In one study, roughly 1 in 11 underage drinkers – ages 13–20 – in the US had consumed a supersized alcopop in the last 30 days (14). Furthermore, underage drinkers are more likely to drink supersized alcopops when they are able to choose the brand of alcohol from a range of alcohol products (20). Several factors likely determine adolescents’ preference for supersized alcopops, including their retail availability (21) at the types of stores where youth most often obtain alcohol from (22–24), their high alcohol content (10,11), low price per gram of alcohol (25), sugary flavors that mask the taste of alcohol, and youth-oriented marketing including packaging (26). These products originally contained energy drink; however, in 2010 they received warning letters from the Food and Drug Administration and Federal Trade Commission (FTC) stating that caffeine is an ‘‘unsafe food additive’’ in alcohol (27,28), and these products were reformulated shortly thereafter to remove caffeine, guarine, and tuarine (29). Nonetheless, the packaging still resembles energy drink, which are popular among underage youth (30). Although the FTC required small alcohol facts labels be put on Four Loko in 2014, there is no evidence to suggest that this modification would curtail heavy consumption of these products by youth (31).

Supersized alcopops’ abv and price suggest they are misclassified

FAB producers may argue that, after the 2002 study was conducted, FABs were reformulated to fit the (newly lobbied for) federal definition of beer. However, the 2008 TTB circular to the industry states that some companies were noncompliant (7). Moreover, three observations suggest that supersized alcopops have an even greater concentration of distilled spirits than other FABs, and therefore should likely be legally classified as distilled spirits. First, supersized alcopops have much greater abv than traditional beer products (11,25). Second, supersized alcopops have the least expensive price per ounce of alcohol of any ready-to-drink product (25). That is, the price of supersized alcopops (per ounce of alcohol) is closer to that of the least expensive distilled spirits rather than the least expensive beer (25). Thus, it would appear that the distilled spirit concentration is higher for supersized alcopops compared to other FABs. Third, the alcohol concentration in supersized alcopops has increased over time (11) while maintaining a relatively low retail price, which suggests that there may be an even greater concentration of distilled spirits in newer supersized alcopop products. Thus, regardless of manufacturers’ claims, product characteristics suggest that these newer FABs contain more distilled spirits than ever.

To examine the plausibility of supersized alcopops being accurately classified as FABs under the TTB’s current requirements, we conducted calculations for two different scenarios. In the first scenario, we used the Batch Example B from the TTB’s 2008 noncompliance report (their example for FABs with abv greater than 6%) to estimate what the malt base’s abv would have to be to yield an overall product abv of 14% while retaining legal classification as an FAB. Using the product formula in their example (which consisted of reasonable proportions of ingredients including a malt base, alcoholic flavor blends with a weighted average abv of 83.74%, nonalcoholic flavors, and water), the malt base would have to be 25% abv, which is extremely high for malt alcohol products (7) [(93,000 * 0.14) – (1,550 * 0.8374)]/47,275 = 0.24795. In a second, extreme scenario to examine possible limits, if the only ingredients in supersized alcopops were the malt base and a 100% abv additive (i.e., no nonalcoholic additives such as water or flavorings were used – which is not the case, as their product labels state that they have artificial flavor and coloring), their malt base would still need to have nearly 13% abv to yield an overall product abv of 14% and still be legally classified as malt alcohol [(.14*100) – (1.5)]/98.5 = 0.1269. Thus, this second scenario illustrates the absolute minimum malt base abv possible to meet legal classification as malt alcohol under the current definition. The high abv for the malt bases provided in these scenarios both seem very unlikely given the relatively low price per volume of supersized alcopops compared to beers of similar abv. This suggests that supersized alcopops rely on a larger proportion of additives for their alcohol content, which would legally classify them as distilled spirits.

The TTB needs to carefully examine whether supersized alcopops now on the market meet the criteria for classification as distilled spirits and make their findings public. This could have a large impact on public safety in two ways. First, classification of supersized alcopops as distilled spirits would directly reduce youth access by resulting in (a) increased price and (b) reduced availability at the retail locations where youth most often obtain alcohol (1–4,22–24). Second, classification as distilled spirits would provide several states an easy way of further protecting youth. For example, Utah is the only state with an alcohol control system for beer and has already delisted supersized alcopops, thus prohibiting their sale throughout the state. If supersized alcopops were classified as distilled spirits, there are several more states that have state run alcohol control systems for distilled spirits that could decide to similarly delist these products for the protection of public safety (32). In the meantime, despite the authority to do so, most states appear reluctant to appropriately reclassify supersized alcopops on their own (33).

From a public safety perspective, it is urgently important that the TTB assess the formulation of supersized alcopops – specifically, the percent of alcohol in the finished product that is derived from additives. Although it is unclear how the 2002 ATF study examined formulation of products labeled and marketed as FABs (6), other public records suggest this is done by reviewing brewers’ batch records (7). However, it is within the realm of possibility that these industry batch records are not accurate. Objective methods should be used to test industry compliance, and violations need to be strictly enforced. Finally, appropriate classification of alcohol products is important for protecting public safety. Thus, the TTB should not allow yet another new definition of what constitutes FABs to be created as this would undermine current regulation of distilled spirits. Rather, if products are in violation of the current classification because they contain too much distilled spirits, then they should be classified as distilled spirits.

Declaration of interest

None.