Regulation of energy drinks

Caffeine affects people differently, with some individuals having less tolerance to caffeine than others. Children and young people (under 18 years old), pregnant and lactating women, and individuals with a sensitivity to caffeine, are more vulnerable to the effects of caffeine.

As a stimulant, caffeine has a direct impact on the brain. Consumed in small amounts, caffeine increases nervous activity positively by improving alertness, mood, and energy. However, too much caffeine can over stimulate the brain, resulting in adverse, unpleasant and at times, serious consequences to health.

Symptoms of too much caffeine include restlessness and difficulty sleeping, tremors, anxiety, agitation, increased blood pressure, increased heart rate (palpations) and other serious consequences, including seizure and death.

There is no established, acceptable daily intake amount of caffeine. However, the European Food Safety Authority suggests a reasonable level of caffeine consumption should be guided by the following: 

Example: In the case of a young person (under 18 years old) weighing 50 kg, the maximum daily caffeine intake should be limited to 150 mg (3 mg x 50 kg = 150 mg) per day from all sources.

It is important to remember that not everyone tolerates caffeine in the same way. Therefore, an individual needs to listen to their body, watch out for symptoms of having consumed too much caffeine and lower their daily intake accordingly.

The label of an energy drink container will have a volume in mL and an amount of caffeine in mg. The following equation can be used to work out how much caffeine is contained in a caffeinated drink

For example, if a 500 mL can of energy drink contained 100 mg of caffeine, as per the above calculation, it would contain 200 mg/L of caffeine.

Caffeine = 1000 ÷ 500 mL x 100 mg = 200 mg/L

It is illegal to sell, manufacture or import an energy drink containing more than 320 mg/L of caffeine. If you are concerned about a product, refer to the 'Reporting caffeinated food products' section of this webpage.

As with all food for sale, energy drinks must comply with Part 1.2 – Labelling and other information requirements, of the Food Standards Code.

Additionally, labelling requirements specific to energy drinks outlined in Standard 2.6.4 of the Food Standards Code, necessitate the label to declare the average quantity, per serving size and per 100 mL of:

• caffeine in milligrams (mg); and
• each schedule 28 listed substance the beverage contains, in the units prescribed by the schedule.

There are required advisory statements that must also appear on the label of energy drinks, including statements to the effect that:

• the food contains caffeine
• the food is not recommended for children, pregnant or lactating women, or individuals sensitive to caffeine
• if the food contains a listed substance (as per Schedule 28) – not more than a *one-day quantity should be consumed.

*For an energy drink, 'one-day quantity' means the maximum amount of a substance that should be consumed in a day.

The Western Australia (WA) Food Act 2008 (Food Act) is in place to ensure the safety and suitability of food for sale in WA. In accordance with the Food Act, food for sale must meet the requirements of the Food Standards Code.  The Food Standards Code is adopted by all states and territories, the Australian government, and the New Zealand government. Energy drinks are standardised in the Food Standards Code, as FCB.

There are overarching general provisions for caffeine in a food, prescribed in the Food Standards Code, such that Standards 1.1.1 – 10 (5)(g) states, unless expressly permitted by this Code, food for retail sale must not contain caffeine at a concentration of:

• 5% or greater - if the food is a solid or semi-solid food; and
• 1% or greater - if the food is a liquid food.

Additional to the caffeine limits applied to all food allowed to contain caffeine, further caffeine limits apply to energy drinks, as well as specific compositional and labelling requirements.

Compositionally, an energy drink, as defined in Standard 2.6.4:

• must contain no less than 145 mg/L and no more than 320 mg/L of caffeine in total, from any source, and
• may contain a listed substance (as per Schedule 28).

Schedule 28, of the Food Standards Code provides a list of substances (specific vitamins, amino-acids, and other substances), and the amount and the unit of measurement (i.e., mg or µg) of the listed substances permitted as ingredients in energy drinks.

The penalties for non-compliance with the Food Standards Code, are outlined in the Food Act.

Section 22 of the Food Act prescribes the penalties for non-compliance with the Food Standard Code. The penalties for an individual are a fine of $50,000, and for a body corporate, a fine of $250,000.

In WA, the local government responsible for the location in which the food is purchased from is the first point of contact to report an energy drink of concern. 

Under the Food Act, local government enforcement agencies investigate complaints about specific food products or food business practices.  As many of the energy drinks sold in WA, are not manufactured locally, the Department of Health will work with the local government and its counterpart agencies in other jurisdictions to facilitate further investigation into food products that are non-compliant with the Food Standards Code.

Some energy drink products are imported into Australia and these must meet the same requirements as food manufactured locally. Any concerns about imported energy drinks can be reported to the local government where the importer / retailer is situated and this will be investigated in a similar manner to domestically produced products. 

Additionally, there may be opportunity, via the Australian Government, for non-compliant imported energy drinks to be targeted at the Australian border to prevent future consignments of the offending product from entering the domestic marketplace.

Alternatively, concerns about a caffeinated energy drink, or any other type of caffeinated food product for sale, can be reported to the Department of Health. The Department can assist with determining whether the product complies with the Food Standards Code, and should it not comply, facilitate an investigation with the relevant local government enforcement agency and/or its counterparts in other jurisdictions.