Patterico's Pontifications

11/17/2010

Would the Supreme Court Uphold the Proposed Ban on Caffeinated Alcoholic Beverages?

Filed under: General — Aaron Worthing @ 9:07 pm



[Guest post by Aaron Worthing; send your tips here.]

A few bloggers have picked up on the latest example of what I call “Democratic Totalitarianism”—that is totalitarian proposals by elected officials.  This time it is the proposal to ban certain drinks that mix alcohol and caffeine.  Libertarian leaning Allahpundit and of course Reason Hit and Run spoke out against this proposed legislation.  I am frankly surprised that Vodkapundit had nothing to say!

But so far none of them have noticed that there might be a serious problem if the issue reaches the Supreme Court.  Now let me emphasize that I didn’t say there is a serious constitutional problem.  If we were following the constitution Wickard v. Filburn would have come out the other way and about 50% of economic regulation would no longer be a matter of Federal concern (absent a constitutional amendment).  But Wickard didn’t come out the right way, and ever since the Supreme Court has rarely found any limits to Congress’ power under the Commerce clause.

But probably the average libertarian doesn’t even realize there is a special issue.  Ho-hum, they might reasonably think, it’s no different than banning pot in Gonzales v. Raich (declaring that the federal ban on pot overruled state law legalizing it for “medical” use).  That’s perfectly reasonable, but wrong.

Ask yourself a simple question.  Could Congress ban alcohol alone?  Well you might remember that the 18th amendment banned alcohol and empowered congress to enforce it, and that the 21st Amendment repealed the 18th.  Now, if we were going to use the most natural reading of the constitution, we might presume that by repealing the 18th amendment, the 21st amendment did little more than restore the status quo ante—before the 18th amendment was ratified.

But in fact the modern Supreme Court has read the 21st amendment more broadly than that, making it so that the states are uniquely empowered on the subject of alcohol regulation, while the federal government is uniquely prohibited from interfering with the manufacture, sale and distribution of that substance.  For instance, California Retail Liquor Dealers Association v. Midcal Aluminum, Inc. (1980), the Supreme Court pontificated on the line between federal and state power on this issue:

More difficult to define, however, is the extent to which Congress can regulate liquor under its interstate commerce power. Although that power is directly qualified by § 2, the Court has held that the Federal Government retains some Commerce Clause authority over liquor. In William Jameson & Co. v. Morgenthau, 307 U. S. 171 (1939) (per curiam), this Court found no violation of the Twenty-first Amendment in a whiskey-labeling requirement prescribed by the Federal Alcohol Administration Act, 49 Stat. 977. And in Ziffrin, Inc. v. Reeves, supra, the Court did not uphold Kentucky’s system of licensing liquor haulers until it was satisfied that the state program was reasonable. 308 U. S., at 139.

This is not the simple “Federal Government wins every time” rule that we are used to seeing in cases involving the regulation of a good that can be bought or sold.  This is actually letting the states win a lot of the battles.

So this is a regulation going straight to the actual contents and manufacture of alcohol.  I haven’t found a lot of law on the subject using the free legal research services, but it seems to me that whether a person puts a perfectly legal substance into their beer is a matter of state concern, rather than federal concern.  And certainly the case for federal dominance is weakened when we notice how inconsistent the ban actually is.  As a recent letter from the Food and Drug Administration explained:

GRAS [Generally Regarded As Safe] status is not an inherent property of a substance, but must be assessed in the context of the intended conditions of use of the substance…. The assessment includes a consideration of the population that will consume the substance…. Therefore, the scientific data and information that support a GRAS determination must consider the conditions under which the substance is safe for the use for which it is marketed. Reports in the scientific literature have raised concerns regarding the formulation and packaging of pre-mixed products containing added caffeine and alcohol. For example, these products, presented as fruity soft drinks in colorful single-serving packages, seemingly target the young adult user. Furthermore, the marketing of the caffeinated versions of this class of alcoholic beverage appears to be specifically directed to young adults…. FDA is concerned that the young adults to whom these pre-mixed caffeine and alcohol products are marketed are especially vulnerable to the adverse behavioral effects associated with consuming caffeine added to alcohol, a concern reflected in the publicly available literature….

As Reason correctly points out

a caffeinated alcoholic beverage targeted at “young adults” is “adulterated,” while exactly the same beverage targeted at middle-aged drinkers is not. The FDA is not really banning drinks; it is censoring speech.

But if it’s only a matter of trying to prevent the wrong people from drinking it then it sounds more and more like one of the “core powers reserved to the States” under the twenty-first amendment.  It’s really an attempt to ban the sale of alcohol aimed at people of a certain age.  I mean it is worth noting that Congress hasn’t even tried to directly set a national drinking age.  Instead they have threatened to withhold funds if a state does not set the drinking age at twenty-one.  It is hard to believe that the Supreme Court would grant that power to Congress today.  I give this proposed regulation a 60% chance of being struck down as unconstitutional, and the issue a 90% chance of being decided at the Supreme Court itself.

Of course in all of this, we have not heard from celebrity libertarian Drew Carrey.  So what does he think about this?  Well, watch this video and take a wild guess.

[Posted and authored by Aaron Worthing.]

111 Responses to “Would the Supreme Court Uphold the Proposed Ban on Caffeinated Alcoholic Beverages?”

  1. I’m not lawyer, but it’s almost scary the way the Dems are in a frenzy of statism. LA County sups outlawed plastic bags in unincorporated areas yesterday! Our dishwasher detergent sucks without phosphates, we have to sort our own stinking garbage, buy terrible light bulbs, and now can’t use plastic bags. If we get too stressed, though, we can always go on a plane trip, right?

    While the swells fly around in the private jets and limos.

    Patricia (9b018a)

  2. Patricia, you’re not putting me in my happy place.

    BTW, consider adding this to your dishwasher before loads.

    Dustin (b54cdc)

  3. Borax is another alternative for your dishwasher.

    For either, you don’t need very much. Particularly with phosphoric acid, use a tiny amount and adjust as needed. The amount you need depends on the mineral content of your water.

    I have pretty hard water and use about a tablespoon. It makes a big difference in my dishwasher’s effectiveness.

    Dustin (b54cdc)

  4. We thought our dishwasher was broken but a few weeks ago a repairman clued us in to the phosphate ban. Dishes were all chalky white, glass and metal discolored, and streaks of olive oil and chocolate refused to budge without hand washing. My husband started buying TSP at Lowe’s and adding a few grains to each load. It doesn’t take much. Problem solved.

    That said, Comment #1 is right on. You can add to that list that the Secretary of Transportation wants to jam cell phones from working in cars. Can you imagine being a woman alone at night in a scary situation and having to get out of your car, or turn it off, in order to use your cell phone and get help?

    Best wishes,
    Larua

    Laura (82a2e2)

  5. Excellent post.

    By Jove, I think you’re right!

    The Amendment repealing prohibition. That makes so much sense.

    Christoph (8ec277)

  6. “Can you imagine being a woman alone at night in a scary situation and having to get out of your car, or turn it off, in order to use your cell phone and get help?”

    Even though I appreciate the dangers women face men, men are actually more likely to be assaulted (by other males, natch) so I don’t think this safety issue just affects women!

    How about this: Some people don’t use cell phones because, rightly or wrongly, they feel they’re sensitive to the radiation.

    Now the government wants to pump radio energy into the occupants of cars to stop them from using a device they don’t use … in order to receive less radiation?

    Land of the free? Hm.

    Not really.

    Christoph (8ec277)

  7. Land of the free? Hm.

    Not really.

    We’ll never be completely free, or as free as I’d prefer, but we’re one of the freest states out there.

    Our human rights inferior neighbors to the north and south, or in most nations across the oceans, simply do not abide the freedom of expression or defense that Americans enjoy.

    It’s worth appreciating just how great America is.

    There will always be some nanny trying to ban practically everything, but this idiot will never get his cell phone jammer. It’s just not going to happen. There’s nothing wrong with laws against distracted driving, however.

    This idiot expressing his idiotic opinion on cell phones is itself an example of our freedom.

    Dustin (b54cdc)

  8. My husband started buying TSP at Lowe’s and adding a few grains to each load.

    Trisodium phosphate is probably a little safer to handle than the liquid bottle of phosphoric acid cleaner that I suggested (and use).

    It’s also cheap. I’ve never used it, but it sounds like a better solution to ineffective dishwashers. Thanks for the tip.

    Dustin (b54cdc)

  9. No less than Rachel Madcow herself has pointed out the silliness of this “proposed ban”.

    ‘Nuff said.

    Icy Texan (c68ceb)

  10. It should probably go to the state, but I think it is oversimplifying it to just say this is nanny statism. People are getting really sick from this stuff, young people. Maybe I am not a true libertarian, but I don’t see what that has to do with free speech. People are ending up in hospitals with alcohol poisoning. I think maybe the state should be the one calling the shot and not the feds, but I also think making it a matter of free speech is kind of anal. But then I am not a libertarian.

    Terrye (ce0d6f)

  11. Laura:

    I don’t think anyone is talking about jamming 911 calls. I don’t think they should do this at all, but then again I almost gone run down the other day by some cute little girl in a cute little red car who was too busy running her mouth on that damn phone to ever even see me. I swear she never knew I as there. Right at that moment I wanted to jam that phone alright. Not exactly the way the Transportation people were talking about either.

    Terrye (ce0d6f)

  12. The 21st amendment didn’t *just* repeal the 18th, it gave state level alcohol policy constitutional status:

    Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

    There’s a strong argument that the states enjoy, when it comes to alcohol, the same sort of “field preemption” the federal government claims on pretty much everything else. It’s just not an argument one should count on winning before a Court whose members were all chosen at the Federal level…

    Brett Bellmore (48aeab)

  13. Look at the Constitutional geniuses like Sotomayor
    and Kagan, and tell me this is not a prospect in the future, and do we dare mention, what kind of
    a genius, newly minted Coons would approve, What was it that Jefferson said ‘A Govt that can give you everything, can also take it away from you’

    narciso (82637e)

  14. By this sort of logic we shouldn’t ban absinthe either. Or cocaine, arsenic, LSD, or strychnine.

    And why require prescriptions for vicodin and morphine? If it’s this sort of draconian totalitarianism you are opposed to, then count me in.

    JEA (2a1ff2)

  15. That was a stunning display of illogic, JEA. Do you even understand the basic differences between legal and illegal substances?

    JÐ (0d2ffc)

  16. The conflation of legal, illegal, and controlled substances was a cute touch too.

    JÐ (6e25b4)

  17. Terry

    > but I don’t see what that has to do with free speech.

    The logic is this. Two companies sell the exact same product. But one uses bright colors and young musicians to sell it, and the other has a more subdued look and uses easy listening musicians. So the DA says the first is verboten, but the second is not, because the second appeals to a more mature audience. It is discrimination based on the content of speech.

    Aaron Worthing (e7d72e)

  18. “The conflation of legal, illegal, and controlled substances was a cute touch too.”

    Specially when we’re talking about what belongs in each category

    imdw (df0dab)

  19. JEA

    There may be a philosophical problem in saying we can’t ban alcohol, but we can ban, say, MJ, but the inconsistency is built into the precedents themselves based on the S.C.’s reading of the constitution. The S.C. said that the 21st amendment means that states are uniquely empowered to determine their destiny in the case of alcohol.

    Aaron Worthing (e7d72e)

  20. “It is discrimination based on the content of speech.”

    Though this description isn’t a ‘ban’ on the product, but a regulation of its marketing. Reason gets that, but your headline reflects a different understanding of what is going on than Reason’s conclusion.

    imdw (df0dab)

  21. no, its not quite that.

    It says if you market it a certain way, you can’t sell it.

    So they aren’t telling you what advertising you can make. they are just telling when you can or can’t sell it.

    Aaron Worthing (e7d72e)

  22. I give this proposed regulation a 60% chance of being struck down as unconstitutional, and the issue a 90% chance of being decided at the Supreme Court itself.

    Don’t count on it. There’s plenty of precedent for this. Look at cigarettes.

    Kman (d25c82)

  23. kman

    in which you ignore literally everything i wrote…

    what is the difference between cigarettes and alcohol?

    Oh, right, there is no specific constitutional amendment that has been read to prevent the FG from banning cigs. *rolls eyes*

    Bluntly, no precedent applied to cigs or any other substance can be presumed to apply in the case of alcohol. the S.C. has declared it to be a special case.

    Aaron Worthing (e7d72e)

  24. “the states are uniquely empowered on the subject of alcohol regulation, while the federal government is uniquely prohibited from interfering with the manufacture, sale and distribution of that substance.

    Ummm… and the BATF is a fed agency, right? And they tell us what we can and can’t do with alcohol, right? I’d love to be able to add home distilling to home brewing. It would be a blow for freedom.

    Gesundheit (cfa313)

  25. “So they aren’t telling you what advertising you can make. they are just telling when you can or can’t sell it.”

    Based on the advertising, not the product. You called this a regulation of speech.

    imdw (8bb588)

  26. imdw

    no, it is regulations of products based on the speech related to it.

    Its not either or. its a violation of the first amendment, AND the twenty-first (as interpreted by the S.C.).

    Aaron Worthing (e7d72e)

  27. its a violation of the first amendment, AND the twenty-first (as interpreted by the S.C.).

    It’s not a violation of the first amendment given that there is plenty of precedent, as I have said, for the FDA to regulate how a product is marketed, even if that impacts to whom it is marketed.

    The 21st amendment has no impact on this. The FDA is exercising its jurisdiction because it controls food additives.

    Kman (d25c82)

  28. “I don’t think anyone is talking about jamming 911 calls.”

    If cell phones are jammed so that they can’t work in cars, how are they going to distinguish 911 calls and let them go through? Maybe the technology’s out there but… And what about wanting to call someone else for help, like Auto Club or a family member?

    Best wishes,
    Laura

    Laura (82a2e2)

  29. Yeah, I’m adding TSP too and vinegar in the rinse cycle. BUT WHY SHOULD I HAVE TO?

    I feel like having a stiff drink!

    Oh, wait…

    Patricia (94c68d)

  30. Kman

    the FG is deciding on the content of an alcoholic beverage. Of course the 21st amendment matters (with my usual disclaimers).

    Aaron Worthing (e7d72e)

  31. kman

    btw, the first comment made it clear you didn’t even read my post. have you read it now?

    Or is this just like the Iowa gay marriage case all over again? where you know i am wrong without actually look into it? like by psychic powers, i guess.

    Aaron Worthing (b1db52)

  32. Like a previously banned poster, he knows what a book says by just reading the title.

    AD-RtR/OS! (a60876)

  33. the FG is deciding on the content of an alcoholic beverage

    ….which it can do. Note that it is not coming in and dictating the alcoholic content of an alcoholic beverage.

    Let me put it this way. Suppose some manufacturer decided to create an alcoholic beverage containing trace amounts of turpentine or some other lethal toxin. You don’t think the FDA can step in? Of course it can.

    Put another way, the 21st Amendment is not a suicide pact.

    Kman (d25c82)

  34. “That was a stunning display of illogic, JEA.”

    No, it was display of the strawman argument Worthing is making.

    Why the hell should we have laws banning anything then? Even for children? They all unconstitutional.

    The fact is we regulate a whole lots of drugs, legal (alcohol) and illegal (cocaine). So this whole nonsensical line of argument about these caffeine-alcohol drinks is plain stupid.

    You would expect the FDA to take a drug off the market if it was harmful, wouldn’t you? Or should the public just take their chances, and oh well, that’s the price you pay for a free-market system?

    JEA (2a1ff2)

  35. Ummm… and the BATF is a fed agency, right? And they tell us what we can and can’t do with alcohol, right? I’d love to be able to add home distilling to home brewing. It would be a blow for freedom.

    Alcohol has not been regulated by the BATF for years. It’s now the TTB, which falls under treasury. The problem for the manufacturers of these (legal) products is that their applications were approved by the TTB. Now, (under obvious political pressure) the FDA is calling them unsafe. And basing their decision on packaging and marketing, which puts them on shaky ground, as noted in this post.

    carlitos (f21c51)

  36. Kman

    First, we aren’t talking about turpentine. We are talking about caffeine, a substance people drink all the frickin’ time.

    indeed, the feds are not objecting to all caffiene alcohol mixes, just ones that are marketed a certain way. They aren’t saying its inherently dangerous, so where do they get off banning it?

    > Put another way, the 21st Amendment is not a suicide pact.

    Whose talking suicide? If the stuff is truly dangerous, you don’t think the states would step in? I’m not arguing that no one can regulate alcohol, just that UNDER SUPREME COURT PRECEDENT the federal government is severely limited in its powers to do so.

    But apparently you think that left to their own devices the states would let companies sell you bottles of turpentine for us to drink.

    And apparently you think the general public is stupid enough to drink it.

    And none of that is an argument based on anything but expediency. Its legal because you think its really, really important for the federal government to do it. You don’t cite a single case or really anything, to support your position. Because fundamentally you just believe in unfettered federal power.

    unless of course two men want to get it on. then suddenly you are a libertarian.

    Aaron Worthing (e7d72e)

  37. AW…please don’t feed the troll(s).

    AD-RtR/OS! (a60876)

  38. I’m not arguing that no one can regulate alcohol, just that UNDER SUPREME COURT PRECEDENT the federal government is severely limited in its powers to do so.

    Sure. And this is one of those circumstances, seeing as what they are targeting as potentially unsafe is not the ALCOHOL within the those products, but the CAFFEINE. The fact that caffeine is a common and safe product is beside the point. When used in conjunction with alcohol, it is not a safe product anymore.

    If alcohol was sold in packaging that looked like sno-cones, they could ban that too, even though sno-cones are not inherently dangerous.

    Because fundamentally you just believe in unfettered federal power. unless of course two men want to get it on. then suddenly you are a libertarian.

    I don’t believe in unfettered federal power. I believe in it where it makes sense. And I’m not worried about two making out someplace. I’m worried about the buzzed college kid on the road, at 1 a.m., heading for my family. Or yours.

    Kman (d25c82)

  39. When used in conjunction with alcohol, it is not a safe product anymore.

    Kman thinks he’s entitled to his own facts, I see.

    Dustin (b54cdc)

  40. Dustin, don’t you recall the epidemic of deaths that occur around every March 17th, from the consumption of Irish Coffee?

    AD-RtR/OS! (a60876)

  41. “More difficult to define, however, is the extent to which Congress can regulate liquor under its interstate commerce power. Although that power is directly qualified by § 2, the Court has held that the Federal Government retains some Commerce Clause authority over liquor. In William Jameson & Co. v. Morgenthau, 307 U. S. 171 (1939) (per curiam), this Court found no violation of the Twenty-first Amendment in a whiskey-labeling requirement prescribed by the Federal Alcohol Administration Act, 49 Stat. 977. And in Ziffrin, Inc. v. Reeves, supra, the Court did not uphold Kentucky’s system of licensing liquor haulers until it was satisfied that the state program was reasonable. 308 U. S., at 139.”

    If this excerpt is accurate, then it’s perfectly possible that the Court will find precedent to uphold a federal ban – with the FDA’s recommendations taking the place of the Federal Alcohol Administration Act. The point is, there have (according to his excerpt – I’m not familiar with the history) been concrete instances where the Court has recognized the right of the Federal Government to intervene in matters of labeling/marketing where alcohol is concerned, in the same vein as cigarettes. Even if it took an explicit qualification to the 21st Amendment (unlike cigarettes), that hurdle seems to have been cleared (in terms of precedential case law).

    Leviticus (128f5c)

  42. Kman

    > When used in conjunction with alcohol, it is not a safe product anymore.

    Proving again you didn’t read the post. That is not the government’s position.

    > I believe in [federal power] where it makes sense.

    Fair enough. And I believe in it when the constitution grants it. That’s the difference between you and me. You fundamentally don’t care about the constitution.

    Aaron Worthing (e7d72e)

  43. Dustin, don’t you recall the epidemic of deaths that occur around every March 17th, from the consumption of Irish Coffee?

    Comment by AD-RtR/OS!

    Ha.

    My wife always pours a little Irish Cream in my coffee and has recently witched to some new mint chocolate version of Bailey’s (or maybe it’s not new… I don’t but our liquor). It’s really great.

    Or maybe she’s an enabler… or even trying to kill me!

    In all seriousness, this is a great example of psuedoscience attempting to scare people into giving up liberty.

    Dustin (b54cdc)

  44. dustin

    so i take it “irish cream” is alcohol.

    this is probably a relevant moment to mention that i am a teetotaler, although not voluntarily. Its a medical thing. I used to have siezures and so now I have been told that if i drink too much alcohol, i might get them back. So i literally have never had more alcohol than a communion cup’s worth. i mean my entire life, never drunk, buzzed or anything like that.

    So that actually makes it hard for me to discuss issues related to alcohol. its a whole world i have no access to. Its like discussing rock music with a man who has been deaf since birth. There is no way to get him or her to even relate.

    But unlike alot of people who don’t drink, i don’t look down at people who do. i do find it funny, however, how people really can’t get over the fact I (1) don’t drink at all and (2) don’t miss it at all. i do wonder sometimes if alcohol is a net positive or net negative for society. no one can deny that some people can’t handle their liquor and either drive drunk or beat their wives. but lots of people seem to enjoy the drink and it helps them to unwind after a long day. I mean people say grand theft auto is a terrible negative game, but i consider it a positive, because after going down I-66 it is downright fun to go into a virtual world and start shooting anyone who cuts you off. Stress relief can be a very good thing. so i really don’t think i can do that cost/benefit analysis, because i have no real understanding of the benefit. its an academic issue to me.

    Kman

    > I’m worried about the buzzed college kid on the road, at 1 a.m., heading for my family.

    Btw, what part of that doesn’t apply to alcohol. so by your expediency logic, we can just ban alcohol, right?

    Aaron Worthing (e7d72e)

  45. Btw, what part of that doesn’t apply to alcohol. so by your expediency logic, we can just ban alcohol, right?

    This has nothing to do with expediency.

    But to answer your question, no. We can’t ban alchohol. We can, however, ban caffeine IN alcohol.

    Kman (d25c82)

  46. kman

    > This has nothing to do with expediency.

    Well, [your argument] has nothing to do with the law, except in the most conclusory sense.

    But you talk eloquently about expediency.

    [edited after the fact. Aaron]

    Aaron Worthing (e7d72e)

  47. Frangelico and coffee. Unsafe. Illegal. Irish coffee. Ditto. Jaeger Bombs. Vodka and Red Bull. Kmart and its ilk are totalitarians, they just don’t like to admit it.

    JÐ (306f5d)

  48. Notice that Kman ignores the fact that there is absolutely zero scientific basis for the FDA assertions.

    So much for the claim, by the way, that the Democrats believe in science vs. the GOP. Not that there was anything left of that claim after the gulf drilling moratorium fraud perpetuated by the White House.

    SPQR (159590)

  49. jea

    for some reason your comment got stuck in the filter. if that happens again, feel free to email me and i will hit it with a stick until it comes out. :-)

    Aaron Worthing (e7d72e)

  50. so i take it “irish cream” is alcohol.

    this is probably a relevant moment to mention that i am a teetotaler, although not voluntarily. Its a medical thing. I used to have siezures and so now I have been told that if i drink too much alcohol, i might get them back. So i literally have never had more alcohol than a communion cup’s worth. i mean my entire life, never drunk, buzzed or anything like that.

    That’s interesting, Aaron. To be honest, while I enjoy alcohol, you are not missing out on anything Earth shaking.

    Irish cream is normal cream and Irish whiskey and a few other things depending on the brand.

    Anyhow, the combination of caffeine and alcohol is not a new one, and it is not dangerous, and, of course, that wasn’t what the government was claiming anyhow. They were claiming they didn’t want alcohol to be marketed a certain way.

    The OMG it’s GOING TO KILL US is a red herring.

    JD provided an example, Vodka and Red Bull (Called DVR) that is carbonated. It’s probably not the safest thing to drink, but neither is Coca-Cola.

    Dustin (b54cdc)

  51. Rum and Coke. Gone. Captain and coke. See. Ya. Anything flavored fruity or mixed with something sweet. Bye bye.

    AW – that comment got caught in the filter because it was douchey.

    JD (abaf80)

  52. It’s too bad my age cohort is so stupid – we probably wouldn’t be having this discussion in the first place if they weren’t.

    Leviticus (30ac20)

  53. Kman

    > We can’t ban alchohol. We can, however, ban caffeine IN alcohol.

    first, um, who is “we?” you are not the feds, are you?

    what about cherry flavoring in alcohol? can the government ban that?

    Aaron Worthing (e7d72e)

  54. That’s right JD. We’re not free enough for a Cuba Libre if Kman wants that. Irony.

    It’s interesting to see who modern day prohibitionists are. It’s no surprise they turn out to be like Kman, afraid to read or understand much of anything. Basically just afraid.

    Dustin (b54cdc)

  55. It’s too bad my age cohort is so stupid

    Just another thing the NEA and AFT can be proud of.

    AD-RtR/OS! (a60876)

  56. Why shouldn’t the guvmint ban “dangerous” foods? What could go wrong?

    Patricia (94c68d)

  57. Kahlua and coffee. Kmart would ban it. Based on no science. Jack and coke, bourbon and coke, etc … Kmart knows what is best for you and would ban it because combining 2 legal substances makes it illegal.

    JD (c8c1d2)

  58. Comment by Patricia — 11/18/2010 @ 4:09 pm

    I grew up on a milking/bottling dairy here in SoCal in the aftermath of WW-2. There has been an on-going war between the industry and the health-nazi’s all this time – for the longest time, only one dairy supplied raw milk in SoCal (think it was “Altadena”), and they were always being poked and prodded by the health dept to try to find something wrong and close them down.
    But I have never heard of having a SWAT-Team show up for an inspection – just shows how far we have declined as a democratic-republic, and the erosion of our rights.

    AD-RtR/OS! (a60876)

  59. Patricia

    That video is seen by liberals as “what could go right.” :-)

    Harsh but true.

    Aaron Worthing (b8e056)

  60. Yes, AD, I think they’re out to prevent another Altadena. It’s scary how right you are, Aaron.

    Patricia (9b018a)

  61. JD, ixnay on the ageryay ombsay alktay, mmmkay? Let’s not give anyone any ideas.

    It’s too bad my age cohort is so stupid – we probably wouldn’t be having this discussion in the first place if they weren’t.

    Your age cohort (with its vodka / red bull and what-not) is no dumber than any other age cohort. Here’s an alcohol / caffeine reference from the 40’s.

    http://www.youtube.com/watch?v=KVVEj1v_ul8

    carlitos (f21c51)

  62. Oops, my bad. I certainly do not want them to focus eir death rays on the Jaeger Girls.

    JD (c8c1d2)

  63. We can’t ban alchohol. We can, however, ban caffeine IN alcohol.
    Comment by Kman — 11/18/2010 @ 12:51 pm

    — Tell that to the makers of Kahlua, as well as Baileys and many many others. IOW, while it can happen, it’s never going to happen.

    Icy Texan (38bedf)

  64. Tell that to the makers of Kahlua, as well as Baileys and many many others.

    I meant “caffeine as an additive”.

    Kman (d30fc3)

  65. And just how, you blinkin’ moron, do you think they make Kahlua?
    They add a concentrated extract from coffee – pure, unadulterated caffeine – to grain alcohol:
    Take the strongest espresso you can find, and add it to EverClear, stir, and adjust mixture for taste with a simple-syrup, and other flavorings.

    Stupid that strong must be extremely painful.

    instaPUNdit (408097)

  66. They add a concentrated extract from coffee – pure, unadulterated caffeine…

    Exactly. Unadulterated.

    Kman (d30fc3)

  67. So, you’re saying that the nominally banned drinks are using “adulterated” caffeine?
    And your proof of this is ???????
    Or is this just an emanation contained in a penumbra that is encapsulating your backside?

    AD-RtR/OS! (408097)

  68. Exactly. Unadulterated.

    Comment by Kman

    Are you illiterate? I guess I’m not one to speak up, since half my comments sounds like I’m illiterate too, but unadulterated means pure.

    Adulterated would be less severe.

    Maybe the reason you never read what you’re talking about is because you can’t read.

    Dustin (b54cdc)

  69. So, you’re saying that the nominally banned drinks are using “adulterated” caffeine?

    This isn’t rocket science, people.

    The manufacturers here are using caffeine as an additive, i.e., added caffeine, i.e., caffeine not naturally found in the pure ingredients of the beverage.

    Coffee, which you might find in Kahlua, naturally contains caffeine. But lemons and limes, the kind of ingredients in these drinks they intend to ban, not so.

    Kman (d30fc3)

  70. I’m not lawyer, but it’s almost scary the way the Dems are in a frenzy of statism. LA County sups outlawed plastic bags in unincorporated areas yesterday! Our dishwasher detergent sucks without phosphates, we have to sort our own stinking garbage, buy terrible light bulbs, and now can’t use plastic bags. If we get too stressed, though, we can always go on a plane trip, right?

    Good thing there are plenty of cities even in L.A. County (let alone the cities in neighboring Orange and Ventura Counties) where plastic bags are still available.

    Paper bags do not make very useful garbage bags.

    Michael Ejercito (249c90)

  71. Kman

    This isn’t rocket science either.

    they are not even banning all caffeine in alcohol. Only in certain drinks depending. and reading comprehension time, do you know what makes the difference between a drink being banned and not?

    Hint: its not its chemical composition.

    Aaron Worthing (e7d72e)

  72. Red Bull and vodka. Banned. Rum and coke banned. Irish coffee. Banned. Kmart is the claasic nanny statist.

    JÐ (0d2ffc)

  73. AW – aren’t they banning based on the marketing, rather than the composition? Lord knows combining two legal substances is inherently evil. See – bacon cheeseburger.

    JÐ (822109)

  74. they are not even banning all caffeine in alcohol. Only in certain drinks depending. and reading comprehension time, do you know what makes the difference between a drink being banned and not?

    Wow. I don’t have my decoder ring. What?

    Kman (d30fc3)

  75. It is because you are a moron contrarian, kmart.

    JÐ (0d2ffc)

  76. It is because you are a moron contrarian, kmart.

    And mendacious. You forgot “mendacious”

    Kman (d30fc3)

  77. Kman

    Its right in the post. so once again, you are shooting off your mouth without the minimum of research. last time you criticized my post criticizing an Iowa S.C. decision without reading it.

    This time you criticized my post, without reading it.

    Why don’t you f—ing read it, and let me know what the difference is?

    For a stalker, you don’t pay much attention to details.

    Aaron Worthing (e7d72e)

  78. Coffee, which you might find in Kahlua, naturally contains caffeine. But lemons and limes, the kind of ingredients in these drinks they intend to ban, not so.

    So, you have no objection to combining alcohol with caffeine, but you do object to the inclusion of any citric acid with the above ingredients?

    Does that mean that we should ban Margarita’s?
    And what about that evil Tom Collins?

    “Stupid that strong must be extremely painful.”

    AD-RtR/OS! (408097)

  79. Nope, mendoucheous.

    JÐ (109425)

  80. AW:

    they are not even banning all caffeine in alcohol

    I never said they were. Where did I say they were?

    I’ve said they are banning those pre-packaged alcoholic beverages where caffeine is an additive

    AD+:

    So, you have no objection to combining alcohol with caffeine, but you do object to the inclusion of any citric acid with the above ingredients?

    Not when it is pre-packaged that way and sold alongside energy drinks.

    Kman (d30fc3)

  81. So you object to the marketing and the advertising.

    JD (74d914)

  82. And you admit to wanting to be a stereotypical nanny statist.

    JD (74d914)

  83. Kman

    > I’ve said they are banning those pre-packaged alcoholic beverages where caffeine is an additive

    And they are not even banning all of them.

    Seriously, READ THE F-CKING POST before commenting again.

    Aaron Worthing (e7d72e)

  84. I’ve said they are banning those pre-packaged alcoholic beverages where caffeine is an additive

    Well, technically they are banning beverages where it’s served in liquid form and spelled with vowels, but you’re missing the point because you didn’t read the post before insisting Aaron is wrong, yet again.

    Doesn’t really matter what he says, you will feel the need to prove him wrong. You’re so sure of it, you never really bother to check first.

    Dustin (b54cdc)

  85. In any alcoholic beverage, everything except the alcohol itself, is an additive.

    “Stupid that strong must be extremely painful.”

    Joe Francis (408097)

  86. Ooppps!

    AD-RtR/OS! (408097)

  87. Taking caffeine pills and drinking plastic bottle vodka = cheap legal wide-awake buzz.

    Drinking “four lokos” in its present form = cheap legal wide-awake buzz.

    Is that simple enough?

    carlitos (f21c51)

  88. Why do you want to kill people, Fu Manchu? Kmart cares more than you. Oh, the humanity.

    JD (74d914)

  89. I’m looking a bit like Dave Grohl now. It itches though.

    carlitos (f21c51)

  90. And they are not even banning all of them. Seriously, READ THE F-CKING POST before commenting again.

    They’re not banning ANY of them. Right now, as your own links show, they’ve issued warning letters to four companies. Which doesn’t even rise to the level of a “proposed ban” at all, but that’s the phrase you’re using, so I wasn’t going to split hairs over your imprecise (as usual) reportage.

    That said, assuming there is an actual proposition to ban caffinated alcoholic beverages, the FDA has not outlined the scope of that ban, noting that:

    other alcoholic beverages containing added caffeine may be subject to agency action in the future if scientific data indicate that the use of caffeine in those products does not meet safety standards.

    There is no ban. There is no proposed ban. Get your facts straight within your post before you criticize someone for supposedly not reading it.

    Kman (d30fc3)

  91. Wow, the pot, just called the kettle, Black!

    AD-RtR/OS! (408097)

  92. I’ve said they are banning those pre-packaged alcoholic beverages where caffeine is an additive

    and then

    There is no ban. There is no proposed ban. Get your facts straight within your post before you criticize someone for supposedly not reading it.

    Came from the same person.

    HILARIOUS.

    But Aaron didn’t get anything wrong. He’s on the money, and Kman still hasn’t read the post, nor does he care to. All he wants to do is harass Aaron.

    Dustin (b54cdc)

  93. There is no proposed ban, only a proposition to ban. Kmart is yet another ‘tard of thunder.

    JD (74d914)

  94. Kman should have been embarrassed as hell by the past thread where he complained about the 14th Amendment, yammering on and on before someone asked him if he bothered to read the decision and see it was discussing a state constitution.

    Now he’s freaking out that the FDA is discussing banning certain things, and Aaron had the audacity to call that a proposal. Somehow, Kman thinks that must be wrong, but Kman also thinks there was a ban, and there wasn’t a ban.

    And the reason for this recent freakout is that he wants to change the subject from his endless yammering about the dangers of caffeine in alcoholic beverages… itself an embarrassing error that led Kman to disregard the constitution he was trumpeting (wrongly) in the last thread.

    Why is it that none of us find this confusing? Because we all know Kman is just saying the opposite of whatever Aaron says.

    Dustin (b54cdc)

  95. But Aaron didn’t get anything wrong. He’s on the money

    Link please. Show me where the FDA has proposed a ban on caffeinated alcoholic beverages (rather than merely issued a warning), so that we all can determine the scope of this supposed “proposed ban”.

    Kman (d30fc3)

  96. Kmart lurvs it’s nanny statism.

    JDd (74d914)

  97. By this sort of logic we shouldn’t ban absinthe either.

    Absinthe is now legal and available in all 50 states.

    Or cocaine, arsenic, LSD, or strychnine.

    Cocaine and LSD are also available in all 50 states. But since they are “banned,” the quality varies from place to place.

    Oh, I see, it’s just a slippery slope non-argument. Never mind.

    carlitos (f21c51)

  98. Kman, is the proposal to propose a ban on these drinks a good thing or a bad thing?

    carlitos (f21c51)

  99. Btw, here is where you can see the past thread where Kman commented on a decision without knowing anything about it.

    Then he admits he didn’t actually read the case he was discussing, here.

    Then weirdly he decides he actually did read the case after all, despite the fact that he didn’t even know which constitution was being discussed in it, here.

    And now he has gone through how many posts asserting that the FDA action was based on a belief that alcohol mixed with caffeine is dangerous? But in fact, they didn’t say it was always dangerous, a fact obvious just by reading the post. in fact it was a point me and imdw were arguing about in several comments. So he has devolved from not reading the case I am criticizing in a post, to not reading the post itself.

    Aaron Worthing (e7d72e)

  100. further action, including seizure of their products, is possible under federal law.

    That’s from the FDA, proposing “further actions”.

    an injunction to prevent the firm from continuing to produce the product until the violation has been corrected.

    http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm234109.htm

    Of course, if Kman had actually read the links Aaron provided, he would know that the FDA’s discussion includes removing certain items from the market.

    Kman is again reverting to the original error he was making, saying this is just about a ban on “caffeinated alcoholic beverages”.

    Did Kman not see that my last comment quoted Kman saying this ban existed, and how that’s in error? Is he being dishonest to then demand I prove what he claimed? Or is he just stupidly insisting everyone is wrong, without really caring to pay attention?

    The aspects Kman has debated in the last three threads I’ve seen him in are basic. They are boring. They aren’t really on topic because Kman’s misunderstanding is so complete.

    We’re talking about free speech in this thread, Kman. You can’t keep up, so go away.

    Dustin (b54cdc)

  101. Dustin/AW:

    Link please. Show me where the FDA has proposed a ban on caffeinated alcoholic beverages (rather than merely issued a warning), so that we all can determine the scope of this supposed “proposed ban”

    Yeah, I didn’t think so.

    Fail.

    AW:

    Btw, here is where you can see the past thread where Kman commented…

    Pretty clear I struck a nerve. Sorry, man. Didn’t mean to make you look bad in front of your red state followers.

    Also, you forgot to tell them I’m a stalker and a socialist and you know, other things in your head.

    Kman (d30fc3)

  102. an injunction to prevent the firm from continuing to produce the product until the violation has been corrected.

    Dustin, an injunction on a company is not a ban on a type of product.

    Kman (d30fc3)

  103. Kman

    Wow, you just exist in your own reality, don’t you?

    http://articles.latimes.com/2010/nov/16/news/la-heb-caffeinated-alcohol-drinks-ban-20101116

    Exactly who do you think you are fooling?

    Aaron Worthing (e7d72e)

  104. Dustin, an injunction on a company is not a ban on a type of product.

    Comment by Kman — 11

    You’re clearly aware of how dishonest you’re being.

    [nick corrected–another casualty of sockpuppet friday. –Aaron]

    Dustin (b54cdc)

  105. Sorry, that 1:46 was me.

    Yeah, I didn’t think so.

    Fail.

    Except I posted a link explicitly saying what I claimed it said. I even quoted it.

    You just said ‘no! FAIL!!!!’ Instantly.

    Then a few minutes later you actually read the comment and decide to explain how the a government injunction to prohibit something isn’t a ban.

    Except

    ban
    1    /bæn/ Show Spelled [ban] Show IPA verb, banned, ban·ning, noun
    –verb (used with object)
    1.
    to prohibit, forbid, or bar; interdict: t

    Like I’ve said several times, Kman, you act as though you are illiterate. It’s really that you’re dumbly calling everyone wrong, but to keep it up as much as you do, you have to deny the most basic things.

    Dustin (b54cdc)

  106. Thank you, Aaron.

    Dustin (b54cdc)

  107. Dustin

    > Thank you, Aaron.

    i knew kman was nuts, and self-contradictory, but i didn’t think he was ready to actually argue against himself…

    Aaron Worthing (e7d72e)

  108. It’s of less interest than caffeine, but Four Lokos is also removing the Taurine, the amino acid that gave Red Bull its name. And guarana, another stimulant.

    carlitos (f21c51)

  109. Hey, all you attorney’s out their, I need help.
    I need to bring a suit against Kman for “pain & suffering”:
    my eyes are bleeding from reading his drivel, and I’m developing a massive headache, and severe gastro-intestinal distress.
    We need a restraining order here.

    AD-RtR/OS! (408097)

  110. So now it will be Unos Lokos?

    JDd (c8c1d2)

  111. lol

    carlitos (f21c51)


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