Attorney General Peter Kilmartin, along with 34 other attorneys general and the San Francisco city attorney, filed comments today responding to the Federal Trade Commission (FTC)'s proposed settlement with Phusion Projects, LLC regarding its deceptive marketing of the flavored malt beverage "Four Loko" in super-sized 12% alcohol/23.5 ounce cans.
Attorney General Kilmartin commended the FTC for recognizing that Phusion's marketing of these super-sized drinks as single servings – i.e., as if they can be safely consumed on a single occasion – is misleading because one can contains the alcohol equivalent of almost five beers. Drinking one can of Four Loko, often referred to as a "binge-in-a-can," thus constitutes a dangerous "binge drinking" episode. At the same time, Attorney General Kilmartin called on the FTC to adopt additional measures to address the safety risks presented by Four Loko, such as limiting its alcohol content to no more than two servings of alcohol per can. "The amount of alcohol in one can of "Four Loko" is very dangerous, possibly deadly, if consumed as meant by the makers of this product. With the alcohol equivalent to almost five beers, there is no question that the sole purpose of this drink is to become seriously intoxicated quickly. With the flashy designed cans, and fruity flavors, the makers of "Four Loko" are strategically marketing to younger adults, who are often not equipped to handle the effects of alcohol. I strongly urge the FTC to take measures to ensure Phusion Products, and all makers of similar products, are not putting consumers, particularly our young adults, at serious risk."
The FTC has charged Phusion with violating federal law by making false or misleading representations that a 23.5 ounce can of 12% alcohol Four Loko can be safely consumed on a single occasion and by failing to disclose the number of alcohol servings in one can. To resolve these charges, the proposed settlement requires, for containers with more than 2.5 servings of alcohol, that Phusion disclose on the label the equivalent number of regular beers and make the containers resealable. It does not, however, limit the number of alcohol servings per can.
The attorneys general expressed concern that the FTC's proposed disclosure and resealability requirements alone likely will not "cure" the single serve aspects of Four Loko and other flavored malt beverages sold in individual 23.5 ounce cans and displayed in self-serve cabinets. For this reason, the attorneys general urged the FTC to amend the agreement to limit the total amount of alcohol per "single serving" container of Four Loko to two standard drinks, irrespective of other requirements.
As the FTC's proposed order would make Four Loko the first and only alcoholic beverage to display the number of servings, the attorneys general also called upon the FTC to enlist public health researchers to study the impact of its new requirements, particularly on young persons.