Ethanol can also be found in non-alcoholic beverages as an incidental additive for many flavoring and other agents. For example, certain botanical ingredients, such as ginseng and rhodiola, dissolve more readily into ethanol than into water. Also, the addition of small amounts of ethanol to a water-based beverage can lower the surface tension, allowing for some water- soluble components, such as B-vitamins, to more readily dissolve into the solution. By federal statute, the ethanol content does not have to be reported or labeled on a beverage as long as the alcohol content remains less than 0.5% w/v (9).
Ethanol has previously been found to be present in sufficient concentrations to cause a measurable mouth alcohol effect after the consumption of certain non-alcoholic soft drinks (10,11). At least two of these beverages had concentrations as high as 0.096% w/v ethanol. This analysis was performed prior to the introduction of energy drinks to the United States market and the subsequent explosive growth of the consumption of these types of beverages. Since the advent and large- scale consumption of these beverages, defendants have made claims that they had achieved positive breath alcohol tests due solely to energy drink consumption. A series of tests was conducted to evaluate the alcoholic content of some of the energy drinks now available and their ability to produce inaccurate breath-alcohol results.