‘Red Bull Gives you Wiings’: Patrolling the Boundaries of Drug Foods
| Published date | 01 June 2011 |
| Date | 01 June 2011 |
| DOI | 10.22145/flr.39.2.4 |
| Author | Rocque Reynolds |
| Subject Matter | Article |
'RED BULL GIVES YOU WIINGS':
PATROLLING THE BOUNDARIES OF DRUG FOODS
Rocque Reynolds*
Drug foods are part of every food culture, so Sidney Mintz has argued,1 and the
energy drink, Red Bull, might be understood as one of our latest drug foods. Drug
foods pose a challenge from a regulatory point of view for they bring into focus two of
the great food debates – the impact of food regulation on food innovation and the role
of food regulators in regard to public health. In so far as drug foods have traditionally
formed a part of every diet, any attempt to ban or limit new or novel drug foods opens
the food regulator to 'endless charges of hypocrisy and irrationality',2 'paternalistic'
behaviour3 and standing in the way of food innovation. On the other hand, if the food
regulator does allow new drug foods to be manufactured and sold it is accused of
failing in its duty to protect public health or of being 'amoral' in this regard. 4
In this article I examine the regulation of Red Bull by Food Standards Australia
New Zealand ('FSANZ') and argue that, whilst FSANZ's regulatory approach does
indeed favour traditional foods over novel foods, naturally occurring substances over
food additives, and nutritious foods over non-nutritious foods FSANZ still makes
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* Professor and Dean of Law, School of Law and Justice, Southern Cross University,
rocque.reynolds@scu.edu.au.
1 Sidney W Mintz, Sweetness and Power: The Place of Sugar in Modern History (Viking, 1985).
2 David T Courtwright, The Forces of Habit: Drugs and the Making of the Modern World,
(Harvard University Press, 2001) 190. This is similar to the problem faced by food and drug
regulators in drawing the line between licit and il licit drugs. As David Courtwright points
out, the fact that psychoactive substances such as coffee, tea, cocoa, alcohol and tobacco are
lawful whilst opium, cannabis and coca are not has prompted an 'entire genre of drug
literature…[which] assesses the relative harms of different drugs and then professes
dismay at their misalignment with policy. Alcohol and tobacco are exhibits A and B.'
Courtwright suggests that Edward M Brecher's Licit and Illicit Drugs: the Consumers Union
Report on Narcotics, Stimulants, Depressants, Inhalants, Hallucinogens, and Marijuana —
including Caffeine, Nicotine and Alcoho l (Little, Brown, 1972) was the progenitor of this genre
of literature.
3 Steven B Steinborn and Kyra A Todd, 'The End of Paternalism: A New Approach to Food
Labelling' (1999) 54 Food and Drug Law Journal 401.
4 Dov Fox, 'Ethics and Law in FDA Decisionmaking' (2005) Michigan State Law Review 1135;
Katherine A Van Tassel, 'Slaying the Hydra: The History of Quack Medicine, the Obesity
Epidemic and the FDA's Battle to Regulate Dietary Supplements' (2009) 6 Indiana Health
Law Journal 203.
282 Federal Law Review Volume 39
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room for all of these food products within a 'total diet' — so long as they are not
confused. I call this the total diet approach to food regulation and it encompasses three
aspects. The total diet is the sum of its disparate parts and includes both 'healthy' and
'unhealthy' foods; each food category has a different role to play in the total diet, and it
is the role of the food regulator to ensure that these food categories are not confused.
Within this regulatory framework food labelling plays a significant role. Rather than
simply representing a return to neo-liberal ideals of consumer choice, food labelling is
the primary tool through which the food regulator patrols the boundaries between
food categories and manages consumer perception of food products. When using this
tool the food regulator is as likely to limit consumer information as it is to promote it.
Such a regulatory approach is contentious for it rejects both the ideal of a 'healthy'
diet and the ideal of an open market in food commodities. The divisiveness of the issue
is evidenced by the fact that, as this article goes to print, the Australia New Zealand
Food Regulation Ministerial Council has announced that it will conduct a full review
of the standard developed by FZANZ in response to the emergence of Red Bull and
other caffeinated energy drinks.5
RED BULL: DRUG, FOOD, DRUG FOOD
The slogan 'Red Bull gives you wiings…' gave a flying start to one of the most
successful food marketing campaigns of modern times. Red Bull was first released in
1987 and by 1999 had become the biggest selling soft drink in Britain, knocking Coca
Cola from its traditional spot. By 2004 Red Bull commanded 70% of the €2.5 billion
worldwide energy drink market, was being sold in 100 markets and was the market
leader in the United States as well as twelve of the thirteen West European markets
where it was sold.6 In 2008 and 2009, when sales of both Pepsi and Coca Cola fell in the
wake of the global financial crises, Red Bull was one of only four soft drink companies
to increase its sales.7
Red Bull markets itself as a pleasure drug for 'non-stop party-animals' as well as a
functional food for working folk. It claims to 'vitalize body and mind'; 'increase
performance'; 'increase concentration and reaction speed', 'improve vigilance', and
'stimulate metabolism'.8 One of its famous early advertisements even seemed to
suggest that Red Bull would enhance sexual performance. The advertisement is set at a
nudist camp. A Red Bull cartoon character, in this case a nude man whose genitals
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5 Food Standards Australia New Zealand, Australia and New Zealand Food Regulation
Ministerial Council Communiqué (Media Release, 6 May 2011)
< http://www.foodstandards.gov.au/scienceandeducation/mediacentre/mediareleases/
mediareleases2011/australiaandnewzeala5154.cfm >.
6 Zenith International (2004) West Europe Energy Drinks Market Races Towards €2500 million,
Press Release, 6 January 2004 cited in Nirmalya Kumar, Sophie Linguri and Nader
Tavassoli (2004) 'Red Bull: the anti-brand brand', London Business School.
7 Jessica Wohl, 'Soft Drinks Hit as Americans Cut Back on Treats', Reuters, 30 March 2009
<http://www.reuters.com/article/idUSTRE52T61520090330>.
8 Red Bull, Red Bull Australia (2011) <http://www.redbull.com.au>. This is from the
Australian website although the Red Bull websites from China to Estonia have almost
identical wording. The differences between the websites from country to country arise
from the different sporti ng events being promoted and the health claims allowed in
different jurisdictions.
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