Attorney General Sam Olens, along with 34 other attorneys general and the San Francisco city attorney, filed comments today responding to the Federal Trade Commission’s (FTC) proposed settlement with Phusion Projects, LLC regarding its deceptive marketing of the flavored malt beverage Four Loko in super-sized 12% alcohol/23.5 ounce cans.

The attorneys general commended the FTC for recognizing that Phusion’s marketing of these super-sized drinks as single servings – i.e., as if they can be safely consumed on a single occasion – is misleading because one can contains the alcohol equivalent of almost five beers. Drinking one can of Four Loko, often referred to as a “binge-in-a-can,” thus constitutes a dangerous binge drinking episode. Attorney General Olens joined the other attorneys general in calling on the FTC to adopt additional measures to address the safety risks presented by Four Loko, such as limiting its alcohol content to no more than two servings of alcohol per can.

The FTC has charged Phusion with violating federal law by making false or misleading representations that a 23.5 ounce can of 12% alcohol Four Loko can be safely consumed on a single occasion and by failing to disclose the number of alcohol servings in one can. To resolve these charges, the proposed settlement requires that for containers with more than 2.5 servings of alcohol, Phusion disclose on the label the equivalent number of regular beers and make the containers re-sealable. It does not, however, limit the number of alcohol servings per can.

The attorneys general expressed concern that the FTC’s proposed disclosure and re-sealability requirements alone likely will not “cure” the single serve aspects of Four Loko and other flavored malt beverages sold in individual 23.5 ounce cans and displayed in self-serve cabinets. For this reason, the attorneys general urged the FTC to amend the agreement to limit the total amount of alcohol per single serving container of Four Loko to two standard drinks, irrespective of other requirements.

A copy of the comments filed with the FTC is attached.

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