Manufacturers of energy drinks often designate the products as
dietary supplements and not beverages. As such, they fall under the
regulatory guidelines of 1994 Dietary Supplement Health and Education
Act, giving the FDA less regulatory control than under the Food
Drug and Cosmetic Act.The FDA has not enforced caffeine
limitations for soft drinks, but if the agency were to regulate SSBs, its
limits would not apply to energy drinks self-designated as dietary
supplements, unless the agency were to redefine the category.In
December 2009, the FDA issued Guidance to Industry expressing
concern that liquids are increasingly being marketed as dietary
supplements instead of as beverages, but has taken no action since.