By Richard L. Frank, a Founding Principal with the law firm Olsson Frank Weeda Terman Matz PC.

The Dietary Guidelines for Americans are the federal government’s official advice on healthy eating and also serve as the blueprint for federal nutrition programs like the National School Lunch Program.  The Dietary Guidelines are issued every five years by the U.S. Department of Agriculture (USDA) and the Department of Health and Human Services (HHS), based on a report prepared by the Dietary Guidelines Advisory Committee (DGAC), a federal advisory group whose members were appointed by the two agencies.

DGAC met throughout 2014 and issued its report to USDA and HHS on February 23, 2015.  The 2015 DGAC report has taken an extremely expansive view of its mission, including recommendations in areas such as sustainability and physical activity that are well outside the jurisdiction of a body charged with “nutritional and dietary information and guidelines.”1 If USDA and HHS adopt the DGAC report’s current approach, there is serious danger that the main nutritional message of the Dietary Guidelines may be lost in the politicized debate that has already begun to overtake common-sense dietary and nutritional recommendations.

Approach to Ingredient Safety

One area where the DGAC report appears to have detoured from evidence-based advice is in its review of ingredient safety.  Dietary Guidelines advisory committees have historically addressed practical food-safety topics germane to the mitigation of high-risk, high-impact public-health issues like food-borne illness and safe food handling.  These topics are supported by well-established science (at the very basic level, hand washing and avoidance of cross contamination), and also have large-scale detrimental impacts if not adhered to.  The 2015 Committee, however, took the topic of food safety several steps further removed by evaluating the safety of non-nutritive ingredients.

In the Spotlight: Caffeine

Caffeine is a topic that has never previously been addressed by the Dietary Guidelines, and probably for good reason.  First, caffeine is regulated.  It can be found in several classifications of products; however, whether a food, dietary supplement, or drug, the products are regulated by the Food and Drug Administration (FDA).  The oversight of ingredient safety falls under FDA’s purview, and while it reports to HHS, the subject-matter expertise and regulatory levers rightly belong to FDA.

While dietary sources of caffeine have indeed proliferated over the past decade, and 85% of Americans consume caffeine every day, caffeine consumption trends show that average caffeine intake over the past 10 years has remained steady.2  This steadiness persists in spite of a changing marketplace, which suggests that Americans know how to manage their caffeine.  Caffeine is also one of the most researched ingredients in the food supply with a long history of safe use over hundreds of years.

An Inconsistent Approach

When it comes to specific non-nutritive ingredients, the review methods and evidence communicated by the Committee are limited and inconsistently applied.  For example, in its review of aspartame, the Committee showed exclusive deference to the 2013 review of the substance by the European Food Safety Authority (EFSA); however, when it comes to the review of caffeine, the Committee did not consider the extensive review work commissioned by EFSA over the past 15 years nor the draft Scientific Opinion on the Safety of Caffeine that EFSA released on January 15, 2015, which has now been adopted and confirmed with minimal amendment.3

Importantly, the EFSA caffeine opinion affirms a holistic view of caffeine from all sources, when considering guidance on daily intake.  In the 2015 opinion, EFSA also affirms moderate daily caffeine intake—from all sources—of up to 400mg per day as generally safe for healthy adults.

The 2015 DGAC assessment of caffeine safety is rife with inconsistencies and information that will likely to lead to consumer confusion.  The report begins with the confirmation that moderate consumption of up to 400 mg of caffeine per day for adults—which the DGAC quantifies as 3-5 cups of coffee per day—is not associated with increased risk of any major chronic diseases, and in fact may reduce the risk of type-2 diabetes, cardiovascular disease, and liver and endometrial cancer.  The confirmation of 400mg per day for healthy adults as moderate consumption aligns with other global health authorities including, as noted above, EFSA, as well as FDA and Health Canada.  The report goes on to find moderate evidence that caffeine may reduce the risk of Parkinson’s disease as well as limited evidence that it modestly lowers the risk of cognitive impairment and Alzheimer’s disease.

Inexplicably, however, the DGAC report jumps from neutral to positive benefit statements regarding caffeine intake from one source—coffee—to then suggest that energy drinks, most of which contain approximately the same amount of caffeine per serving as a cup of coffee, should be avoided.

The DGAC report acknowledges that the main sources of caffeine for all age groups are coffee, tea, and carbonated soft drinks—not energy drinks.  Energy drinks contribute approximately 2% of caffeine to the American diet with coffee contributing 64%, soda 17%, and tea 17%.4  Even among children, teens, and young adults, energy drinks contribute less than 6% of total caffeine intake in 2009-2010, the most recent years for which we have data.

What is surprising, and lacking scientific support, is that the DGAC identified energy drinks as the source of high caffeine intake.  No definition of “high caffeine” is provided.  The DGAC should have followed the approach EFSA took on its draft Scientific Opinion, and considered caffeine holistically.  FDA has concluded that the chemical structure of caffeine is the same whether naturally occurring or manufactured and the effects on the human body are the same.5

The DGAC report describes the energy drink market as varying greatly in caffeine content, ranging from 50 to 505 mg of caffeine per can or bottle.  However, the DGAC report ignored data which confirms that the vast majority of energy drinks sold in the United States (by volume) contain approximately 80 mg of caffeine per 8.4 fluid ounce container and that there are only a few (low-volume sales) energy drinks in the higher ranges.6  For context, 80 mg per 8.4 fluid ounces is commensurate with the same-sized cup of home-brewed coffee.

The DGAC report persists in lumping all energy drinks together as “high-dose caffeine” and concludes that they are responsible for excessive caffeine consumption and potential adverse health effects.  But there is no scientific or medical basis to distinguish the caffeine in coffee, tea, or cola from caffeine in energy drinks.7

Many coffee houses serve beverages that contain far higher concentrations of caffeine than the leading brands of energy drinks, a fact not mentioned in the report.  For example, one leading coffee-house chain serves brewed coffee with 260 mg of caffeine per small cup, 330 mg per medium, and 415 per large.

USDA and HHS should carefully scrutinize the DGAC report, its methods, its conclusions on caffeine safety, and the scant evidence that has been relied upon to support them.  Without consideration of the most up-to-date and relevant scientific evidence pertaining to caffeine, these inconsistent conclusions are misguided and inexplicably discriminatory against a single product category.  No public health gain can be attained from the bifurcated approach taken by the DGAC report. On the contrary, should this advice be followed, it will not only misinform and confuse consumers, but also divert needed public attention from important topics to fatuous ones.


Richard L. Frank is a Founding Principal with the law firm Olsson Frank Weeda Terman Matz PC.

  1. Section 301(a)(1) of the National Nutrition Monitoring and Related Research Act of 1990 (7 U.S.C. § 5341a(a)(1)).  Section 301(b)(3) of the Act provides that the term “dietary guidance does not include any rule or regulation issued by a federal agency” (emphasis added).  The regulatory recommendations inappropriately contained in the 2015 DGAC report include the listing of added sugar in both grams and teaspoons on the Nutrition Facts panel; mandated limits on the sodium content of foods; limiting access to certain foods in public buildings; and taxation of “unhealthy” foods such as sugar-sweetened beverages.
  2. Ahluwalia, Caffeine intake in children in the United States and 10 year trends: 2001-2010, Am. J. of Clin. Nutr. DOI: 10.3945/ajcn.113.082172 (2014); Branum, Rossen, and Schoendorf, Trends in caffeine intake among U.S. children and adolescents, Pediatrics, 386-393 DOI: 10.1542/peds.2013-2877 (2014); Fulgoni, Various Aspects of Caffeine Intake in America: An Analysis of NHANES, Presented at the Institute of Medicine Workshop on Potential Health Hazards Associated with Consumption of Caffeine in Food and Dietary Supplements. Aug. 5, 2013, available at
  3. Draft opinion Adopted version expected end of May 2015.
  4. Mitchell, Knight, Hockenberry, Teplansky, and Hartman, Beverage caffeine intakes in the U.S., 63 Food Chem. Tox. 136-142 (2014).
  6. Somogyi, Caffeine Intake by the U.S. Population, Prepared for the United States Food and Drug Administration and Oakridge National Laboratory. Subcontract Number: 70000073494 (2010); Mitchell, Knight, Hockenberry, Teplansky, and Hartman, supra note 6.
  7. The DGAC’s effort to support a distinction based on the mixing of alcohol and energy drinks likewise fails for two reasons—first, the evidence of a link is acknowledged by the Committee to be “weak,” requiring further research; and second, beverage alcohol is widely mixed with cola and other caffeinated beverages for which the Committee raises no concerns.