Ethanol can also be found in non-alcoholic beverages as an incidental additive for many flavoring and other agents. For ex- ample, certain botanical ingredients, such as ginseng and rho- diola, dissolve more readily into ethanol than into water. Also, the addition of small amounts of ethanol to a water-based bev- erage can lower the surface tension, allowing for some water- soluble components, such as B-vitamins, to more readily dis- solve 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 consump- tion 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 con- ducted to evaluate the alcoholic content of some of the energy drinks now available and their ability to produce inaccurate breath-alcohol results.