• Parents of a deceased college student filed a lawsuit against Panera Bread Company, alleging that the company’s “Charged Lemonade” caused the death of their daughter who suffered from a heart disorder which makes the heart’s rhythm sensitive to stimulants.
  • The lemonade was described on the store menu board as “Plant-based and Clean with as much caffeine as our Dark Roast coffee.” The complaint alleges that the failure to specify the size of coffee providing a comparable amount of caffeine rendered the warning ineffective. Per the complaint, the caffeine content of the Charged Lemonade ranges from 260 mg (20 fl. oz. regular size) to 390 mg (30 fl. oz. large size), whereas the caffeine content of Panera’s coffees ranges from 161 mg (12 fl. oz. small coffee) to 268 mg (20 fl. oz. large coffee). Charged Lemonade also contains the stimulant guarana.
  • FDA’s webpage on caffeine indicates that 400 mg a day is “not generally associated with dangerous, negative effects,” but that the level of sensitivity can vary widely.
  • FDA has taken the position that caffeine added to alcoholic beverages is an unsafe food additive and that highly concentrated caffeine supplements are adulterated because they present a significant or unreasonable risk of illness or injury. However, neither concern expressed by FDA is implicated here; in the former case, FDA’s concern was related to the combination of alcohol and caffeine, while in the latter, the caffeine content was much higher (as much as 3,200 mg/teaspoon).
  • Keller and Heckman will continue to monitor and report on this case and other litigation affecting the food industry.