Vikings Defense of Michael Floyd's Kombucha Argument Demands More Answers

According to the St. Paul Pioneer Press, Vikings chief operating officer Kevin Warren wrote a letter to wide receiver Michael Floyd’s attorney that claims that Floyd was unaware of the alcoholic content of kombucha tea and that the tea is used by professional athletes for health reasons.

The article also points out that Floyd’s sworn affidavit claims that the Vikings encourage players to consume kombucha tea and that the beverage is “on tap” at Winter Park.

Not only that, Floyd has hired Doctor Thomas L. Bennett to testify that kombucha tea can be responsible for Floyd’s failed breathalyzer tests, particularly given that the tea is a result of a living process that can be accelerated by storing the drink at room temperature.

If true, it creates a liability for the Vikings. They not only should inform players of the contents of the tea they encourage the athletes to drink, but specifically should keep such a drink away from an alcoholic who was cited for drunken driving in college and convicted of driving under the influence earlier this year. There are well-established arguments, including those made by Alcoholics Anonymous, that those susceptible to relapse should avoid the drink.

The explanation the Vikings provided doesn’t seem likely, either. Kombucha tea is typically sold as a “functional drink” that must legally have an alcohol-by-volume of 0.5 percent or lower (light beers range between 2.4 percent and 4.5 percent ABV and many beers contain north of 5.0 percent alcohol by volume) and there have been significant legal battles over some of the issues that arise with a drink that may ferment after purchase.

The Vikings cited one of the warnings provided by the Alcohol and Tobacco Tax and Trade Bureau (TTB) in 2015 as evidence that a small mistake could trigger Floyd’s BAC test result of 0.055. The agency has agreed that problems with the testing process — which congressperson Jared Polis argues, “often confuses organic acids and naturally occurring sedimentation for alcohol” — invites an alternative testing process.

All that said, Whole Foods — where Floyd claimed to buy the GT brand tea — has begun to test all of the kombucha that they sell. GT sells a 21-plus brand of kombucha that is marked with a black label as well as a brand without that label for kombucha tea tested below 0.5 percent.

Hopefully, Floyd did not purchase a beverage clearly marked as containing alcohol that he needed to be carded in order to buy. That would violate the terms of his parole regardless of the Vikings’ arguments.

To Floyd’s credit, it is possible for a secondary fermentation for kombucha tea to increase alcohol levels (some producers in 2015 were flagged for an alcohol content of three percent ABV). In a sealed container, alcohol and carbonation can build up in raw kombucha.

If, for whatever reason, the tea container was unsealed, alcohol would build up proportional to acetic acid buildup — meaning the tea would be as acidic as vinegar and likely undrinkable.

Home fermentation isn’t necessarily a quick process. It can take 30 days for a secondary ferment to produce enough alcohol to meet the standards of light beer.

Floyd moved in with tight end Kyle Rudolph in late May, so it is possible that he bought kombucha upon arrival and consumed it one month later after letting it sit outside.

The issue is that after that amount of time, kombucha is more likely to explode or gush out at opening and be impossible to drink more than it is to be wholly consumed like a beer. And any drinker would probably be hesitant after opening the first bottle.

Floyd and the Vikings may have to rely on test results produced by a class-action lawsuit against Millennium, the rights-holders to the GT brand kombucha. They found that kombucha produced by the company often tested at alcohol levels of two percent ABV, with some reaching three percent. There was one bottle that produced an ABV of 3.81 percent, though that appears to be an outlier.

Those tests aren’t available online, but the testing service used does have a paper on the history of alcohol testing in kombucha, which is poor.

That class-action lawsuit was settled in early January. The terms of the settlement involved more thorough testing, clearer labeling on bottles, indications that alcohol may naturally develop and that failing to refrigerate can increase pressure.

Even in the case where an industry crackdown on alcohol content, paired with distributor testing, led to home fermentation of a substance that produced alcohol without burdensome carbonation, the amount of tea that Floyd claimed to drink doesn’t match with his purported test results.

Had the kombucha tea had as much alcohol as the rarer high ABV teas tested by Brewing and Distilling Analytical Services, five 16-ounce bottles of tea would have resulted in a BAC level below 0.03.

Instead, Floyd peaked at 0.055, which would either require an alcohol content of 4.5 percent or 105 ounces (6.5 bottles) of tea consumed at an unlikely alcohol content of three percent — assuming Floyd metabolized alcohol at the rate of an average drinker instead of at a rate of a heavy drinker.

Thomas L. Bennett, the doctor Floyd hired to clear his name, also has a questionable history.  Bennett has a history of paid medical testimony in court cases, and one assistant district attorney found that in 77 of the ADA’s criminal cases since 2005, Bennett was the expert witness for the defense 46 percent of the time.

The State Medical Examiner’s Office in Montana chose to reorganize in favor of state employees instead of appointing Bennett to perform medical autopsies in eastern Montana.

The move was made after the state’s chief medical examiners requested that Bennett stop performing autopsies for the various counties throughout Montana. Those requests arose from concerns about the credibility of his work. An independent review later confirmed serious deficiencies in what he did.

Prior to that, there were significant questions about his role as a medical examiner in the state of Iowa—questions that cropped up when Montana explained their decision, though at least one judge ruled that those controversies shouldn’t impact his ability to be a witness.

That judge’s rational was that the Iowa issues were a personal conflict in a small community, but even a neutral evaluator from several states away was shocked at Bennett’s work.

Knowing that expert testimony, like industry-funded scientific studies, can be influenced by paid-for bias (even in medicine) only adds to irresolution.

Not only that, Floyd still missed a breathalyzer test, which by itself violates the terms of his house arrest. There’s a likelihood, however small, that the truth is how the Vikings and Floyd describe it — but he could still be subject to discipline from the state and the NFL.

A conviction isn’t even necessary for the NFL to impose a further punishment on Floyd, who will be suspended for 2-to-4 games as a result of the DUI in Arizona that created this situation in the first place.

The Vikings will have to question their role in encouraging a player with alcohol problems to drink a beverage that could easily become alcoholic. Even if that drink was not the cause of the failed test, recommending such a drink is a risk they took after taking in a player with known alcohol problems.

If the drink was not the cause of the failed test, then there are much deeper problems that they’ll have to deal with — and the resolution may be to let him go.

On the other hand, if the NFL decides to suspend Floyd for the year, it won’t necessarily impact the Vikings’ cap or roster liabilities and it could toll Floyd’s contract into the next year. It may end up being a risk-free proposition to retain him.

Floyd’s testimony sought to resolve the many concerns that appeared after his failed test hit the news, but the testimony isn’t compelling at the moment. There are still significant questions that he and the Vikings will have to answer.

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