New York (CNN) — Restaurant chain Panera Bread has faced three separate lawsuits in recent months claiming the high levels of caffeine in its Charged Lemonade led to the death of two customers and irreversible health complications in another.
So why does the chain continue to offer the drink on its menu?
“Very often in lawsuits, there is a knee-jerk reaction among lawyers to do as little as possible publicly out of some vague fear that you are exposing yourself to additional liability,” crisis PR expert James Haggerty told CNN, noting that this approach can have a detrimental effect on the market value of a company, at times to the tune of hundreds of millions of dollars.
Completely removing the drink from the menu could come across as an implied admission that something was indeed wrong with it in the first place. But, according to Haggerty: “It’s a cost-benefit analysis … the loss of reputational value will often outweigh anything that occurs in the courtroom.
“History has shown over and over again that the drip-drip-drip of negative publicity will cost a company far more than any lawsuit,” he added.
Lawsuits claim advertising was unclear
Both wrongful death suits allege the Charged Lemonade does not clearly advertise its high levels of caffeine, and does not provide a warning to customers.
A large-size Charged Lemonade, which comes in a 30-oz cup, contains up to 236 mg of caffeine. The US Food and Drug Administration says that a safe quantity of caffeine “for healthy adults” typically amounts to about 400 milligrams per day (around four or five cups of coffee).
The first lawsuit, which was filed in October by the family of a 21-year-old college student with a heart condition, alleged she unknowingly drank the Charged Lemonade because she was “reasonably confident it was a traditional lemonade and/or electrolyte sports drink containing a reasonable amount of caffeine safe for her to drink.” The lawsuit stated that Panera misled consumers by not properly labeling the lemonade as an energy drink in stores.
Similarly, the second lawsuit, filed in December by the family of a 46-year-old man with a chromosomal deficiency disorder, ADHD and high blood pressure, claimed that the product was not properly labeled.
A third lawsuit filed in mid-January alleged that, since consuming two and a half Charged Lemonades over the course of one day last April, a woman with no underlying health conditions now experiences instances of irregularly fast heart palpitations and takes regular medication to regulate her heartbeat.
“The primary reason she ordered this drink was because it was advertised as ‘plant-based’ and ‘clean,’” the complaint states.
“This marketing is especially dangerous to a vulnerable population, children and adults who would reasonably believe this product was lemonade and safe for consumption,” according to the complaint, which added that the beverage is also dangerous because it is mixed on the premises by employees, so its caffeine content is not strictly controlled.
After the first lawsuit was filed in October, Panera told CNN that it was investigating the matter. In December, following the second lawsuit, the company said that its investigation had revealed that the man’s death “was not caused by one of the company’s products… Panera stands firmly by the safety of our products.”
Unclear or mislabeled foods are known public hazards. On Thursday, grocery chain Stew Leonard’s recalled Vanilla and Chocolate Florentine Cookies that were sold at two Connecticut locations between early November and late December over “undeclared peanuts and eggs.”
“People with an allergy or severe sensitivity to peanuts or eggs run the risk of serious or life-threatening allergic reaction if they consume these products,” the company said in the recall notice, adding that “one death has been reported that may be associated with the mislabeled product.”
When does the government intervene?
Federal regulatory bodies have previously stepped in to sound the alarm on caffeine content in consumer products. In 2010, the FDA issued warnings to four drink manufacturers that were adding caffeine to their alcoholic beverages, leading the companies to suspend production of the beverages.
In 2018, the FDA advised consumers against using dietary supplements “consisting of pure or highly concentrated caffeine” after it was made aware of “at least two deaths related to these products in otherwise healthy individuals.”
“Under the Federal Food, Drug, and Cosmetic Act, companies are responsible for ensuring that any use of caffeine in their products is safe. Under the Act, any substance that is intentionally added to food must be safe under the intended conditions of use. The safe use of the ingredient includes the amount that would be expected to be consumed,” an FDA spokesperson told CNN.
The American Beverage Association, the trade organization representing non-alcoholic drink manufacturers, including 95% of energy drinks sold in the United States, provides a set of voluntary rules for labeling and marketing energy drinks.
One rule prohibits manufacturers from marketing their energy drinks to children younger than 12, and another states that labels on the drinks should “not promote excessive or unduly rapid consumption.”
Furthermore, according to the guidelines, these beverages must be labeled with a warning statement along the lines of: “Not (intended/recommended) for children, pregnant or nursing women (and/or persons/those) sensitive to caffeine.”
While neither Panera nor its parent organization JAB Holding Company are listed as ABA members, the public attention has seemingly influenced Panera’s advertising along ABA guidelines. In the past several weeks, the company appears to have taken steps to highlight the caffeine content in the beverage and the risks it may pose.
In late August, more than a month before the first wrongful death lawsuit was filed, Panera’s online menu simply stated that the drink was “Plant-based and Clean with as much caffeine as our Dark Roast Coffee.”
By December 5 — the same week a second wrongful death lawsuit was filed against the chain — the online menu displayed bold letters stating “CONTAINS CAFFEINE” across the images of the Charged Lemonades, according to a CNN analysis of internet archives. The product description on the individual pages for each lemonade flavor now reads: “Contains caffeine. Use in moderation. NOT RECOMMENDED FOR children, people sensitive to caffeine, pregnant or nursing women.”
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