Regulates the retail sale of flavored malt beverages; defines flavored malt beverages as a malt beverage containing more than 8 per centum of alcohol by volume and the formula of which must be filed with the federal Alcohol and Tobacco Tax and Trade Bureau; provides that the provision of a flavored malt beverage by a retail licensee to any person under 21 years of age shall constitute a class E felony; prohibits the sale of flavored malt beverages in any container in excess of 12 ounces; requires flavored malt beverages to be sold for off-premises consumption in an area segregated from the areas where other beverages are sold; such beverages shall not be sold in a refrigerated state; requires the areas where flavored malt beverages are sold to be under the surveillance of the employees of the licensee; requires the posting of health warnings in the areas where such beverages are sold and upon the labels thereof; regulates the labelling of such beverages.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5922
SPONSOR: Ortiz TITLE OF BILL: An act to amend the alcoholic beverage control law, in
relation to regulating the retail sale of flavored malt beverages
PURPOSE:
The purpose of this bill is to institute safeguards at the point of sale
for high alcohol flavored malt beverages (hereinafter FMB's) that are
now sold in grocery and convenience stores. These safeguards are being
instituted to discourage the consumption of such beverages by minors or
the inappropriate consumption of such products by those over the age of
21. A FMB is any malt beverage that is not a "traditional" fermented
malt beverage, such as ales, bitters, browns, lagers, porters, stouts,
seasonal beers, wheat beers, or other specialty beers that contains more
than 8% in alcohol and for which its formula for its manufacture must be
filed with the Federal Alcohol & Tobacco Tax and Trade Bureau (TTB).
These Flavored Malt Beverages (FMBs) are now being actively marketed to
and increasingly used by those who are between the ages of 14 to 25. For
those under the age of 21, the consumption of such beverages is current-
ly against the law, but is commonly occurring. For those 21 years of age
or older, there is a high incidence of the inappropriate consumption of
such beverages while operating a motor vehicle or in violation of the
open container law only moments after such beverages are purchased.
SUMMARY OF PROVISIONS:
Section 1: Amends ABC Law section 3 to add a new definition for the term
"Flavored Malt Beverage" (FMB). Such beverage shall be those types of
beverages that are most attractive to underage drinkers and for those
under the age of 30. FMBs as defined under this bill, shall be high
alcohol malt beverages that have over 8 percent alcohol and for which a
formula for its manufacture must be filed with the Alcohol and Tobacco
Tax and Trade Bureau of the U.S. Department of the Treasury (TTB). Under
TTB regulations, if the malt beverage is other than a traditionally
brewed malt beverage, such as ales, bitters, browns, lagers, porters,
stouts seasonal beers, wheat beers, or other specialty beers, then its
manufacturer must file the formula for it manufacture to the TTB. This,
in essence, keeps all traditional beers out of the definition of FMB,
but will bring in those highly alcoholic sweet and fruit flavored malt
beverages which are designed to be attractive to underage drinkers.
Section 2: Amends the ABC Law Section 65 to add a new subdivision (3-a)
to add to the list of prohibited sales of alcohol, the sale of FMBs to
persons under the age of 21. Under current law, any licensee, or agent
of a licensee (i.e. sales made in convenience stores, restaurants or
bars) who sells, delivers or gives away any alcoholic beverage to a
person under the age of 21 is guilty of a Class A misdemeanor. Under
this bill, the criminal penalty for such a transaction to sell FMBs
would be increased from a Class A misdemeanor to a Class E felony. A
class A misdemeanor is punishable by a fine of up to $ 1,000, one year
in prison, or both. A Class E felony is punishable by a fine of up to
$5,000 and an indeterminate sentence of between 1 and 3 years in prison,
or both. The reasoning for the heightened penalty for the sale of FMBs
to minors is that these are the types of beverages that are most attrac-
tive to underage drinkers. Minors will be more attracted to a sweet
fruit flavored alcoholic beverage that does not have sufficient acid to
bite the palate and which masks the taste of alcohol, unlike that for
traditionally fermented beers or liquors such as scotch.
Section 3: Adds a new ABC Law section 100(8) that provides for a general
prohibition against the sale or delivery, at retail, of FMBs that are in
any container greater than 12 ounces.
Section 4: Amends the ABC Law section 105 to add a new subdivision 13 to
require licensees that sell FMBs for off-premises consumption:
-To only sell FMBs in an unrefrigerated state to help discourage the
immediate consumption of these highly alcoholic beverages after leaving
the store while either operating a motor vehicle or in violation of the
open container laws.
-At the point of sale, FMBs are to be segregated from other alcoholic
and non-alcoholic beverages so that they cannot be easily confused with
other such beverages that have no alcohol or conventional lower alcohol
beverages such as beer.
-FMBs are to be placed so that they can be observed by store shop clerks
either directly or via store video cameras to curtail the shoplifting of
such high alcoholic beverages by minors.
-To post a warning notice so that potential purchasers will know that
FMBs are very high alcoholic beverages over 8%. (almost double the alco-
hol content of traditional beer), that FMBs should not be confused with
ordinary energy drinks or other lower alcohol beverages such as beer,
and that the sale or consumption of such beverages by minors carries a
heightened criminal penalty to those who sell such beverages to minors.
-The SLA is to approve, by regulation, the size and text of such sign to
be posted.
Section 5: Amends ABC Law section 107-a to enact more stringent label
approval standards for FMBs. Under current state law, the labels on all
containers of beer and malt liquors that have been approved by the
Federal Alcohol & Tobacco Tax and Trade Bureau (TTB) are deemed approved
upon filing with the State Liquor Authority (SLA) 30 days after such
label is filed for review with the SLA. This bill provision outlines
additional standards that need to be satisfied before a FMB label can be
approved in New York. Without such approval, the FMB cannot be sold in
New York. The bill also gives the SLA 120 days to review such FMB label
applications so that the Authority has sufficient time to review such
application and the heightened criteria that need to be satisfied to
sell FMBs in New York.
Under this bill, the FMB label must:
A)
-Advise consumers that FMBs have high alcohol content above 8% (almost
twice as much alcohol as a regular beer)
-Due to its high alcohol content, consumption of such beverage signif-
icantly increases the risk of accidental injury or alcohol poisoning,
and that persons should not operate motor vehicles or heavy machinery.
B) The label must be designed so that it cannot be easily confused with
other non-alcoholic beverages or energy drinks. In this manner, law
enforcement will be able to recognize if such beverages are being
consumed in motor vehicles, in violation of the open container laws, or
by minors.
C) The label must be designed so that it is not attractive to nor
encourage the consumption of such high alcohol beverage by minors.
D) Advise the consumer that the sale or consumption of such FMB by a
minor carries with it an heightened criminal penalty of a Class E Felo-
ny, as provided for under this bill.
Section 6: Amends ABC Law section 107-a, to give the SLA an additional
90 days to review and approve FMB labels to ensure that such labels meet
the additional labeling criteria established in section 5 of this bill.
Under current law, the period of review time is 30 days. This bill
extends such period of time to 120 days.
Section 7: The effective date is 180 days after it shall have become law
so that grocery and convenience stores will have ample time to reconfig-
ure their sales areas and for the SLA to adopt any rules or regulations
that it may need to implement this act.
JUSTIFICATION:
The issue of the sale, marketing and consumption of Flavored Malt Bever-
ages (FMBs) by underage drinkers and persons under the age of 30 who
continue to abuse these alcoholic beverages continues to evolve rapidly.
These issues initially arose with the growing popularity of caffeinated
alcohol beverages (CABs). With reports of students on college campuses.
becoming seriously intoxicated due to consumption of energy drinks that
also contained high amounts of alcohol, the safety of these beverages
came under closer scrutiny. One such beverage, Four Loko, comes in a
23.5 ounce can that contains 12 percent alcohol and 156 milligrams of
caffeine.
The rapid expansion in the market share of these CABs raised questions
about how these drinks were formulated, their caffeine levels, alcohol
content, and whether they are properly classified as malt beverages
under federal and state law.
On November 14, 2010, responding to safety concerns voiced by the Feder-
al Drug Administration (FDA), Governor David Paterson, and the State
Liquor Authority, in conjunction with the Retail Beer Wholesalers came
to a voluntary agreement to stop the distribution of Four LOKO and simi-
lar CAB products in New York State.
On November 17, 2010, the FDA issued Warning Letters to four manufactur-
ers of CABs (Phusion Projects, LLC, United Brands Co., Inc., Charge
Beverages Corp., Inc., and New Century Brewing Co., LLC). The FDA's
letters warned that the addition of caffeine to those manufacturers'
alcoholic beverages had not been approved by the FDA and is an "unsafe
food additive." All 4 manufactures decided to cease the production of
their high alcohol drinks with the inclusion of caffeine.
However, four months after New York State convinced the makers of these
CABs to pull their products off the shelves, a new reformulated version
of the products began to appear. While appearing to have conquered the
believed deadly combination of alcohol and caffeine, the new product
remains just as dangerous.
These new products, often referred to as "Alcopops", are still selling
at an average of $2.00 dollars a can and contain the equivalent of three
cans of beer. Reports across the country are citing the high level of
minors still drawn to these products as the alcohol content remains high
and the flavoring and branding maintain its focus on attracting underage
drinkers.
In New York alone in the past few months, 4 teens were rushed to the
Emergency Room in Queens with alcohol poisoning due to Four Loko and
Joose. Also, the Downstate Poison Control Center has received seven
calls to date reporting seven separate cases of people being sick enough
to be hospitalized after specifically consuming Four Loko. Five of
those seven individuals were under the legal drinking age. Finally,
since January 2011, at Canisus College in Buffalo, New York 10 cases
involving underage consumption of Four Loko, both on and off campus,
have been reported to date.
With its brightly packaged cans, fruity flavors and low price point, the
new version of Alcopops, without the caffeine, are just as dangerous and
deceptive as their predecessor caffeinated alcohol beverages. For exam-
ple:
o Inexperienced drinkers can be confused in thinking that one can
contains one serving of alcohol.
o One container may actually contain up to six servings of alcohol, such
as six beers.
o Alcohol content of this degree is more similar to wine than beer, but
unlike wine which can only be sold in liquor stores, these high alcohol
FMBs are sold in grocery stores, gas stations, and bodegas. Under NYS
law, no person under the age of 16, except accompanied by their parent,
can enter into a liquor store. However, minors are readily allowed to
and encouraged to patronize local convenience stores to purchase candy,
soda, and other snacks.
o Beverages of this type are the most rapidly expanding sector of the
alcohol beverage market, becoming more prevalent and easily accessible
to youth.
o Youth, particularly girls and young women, are attracted to the sweet
and fruity flavors of FMBs which masks its high alcohol content.
o The flashy packaging is also designed to attract the eye of, and
appeal to, the younger or under aged drinker. FMBs are packaged and
labeled to look like other non-alcoholic beverages that are commonly
consumed by minors.
Under this bill, high alcohol sugary drinks as referenced above that
have kid-friendly flavors of watermelon, bubblegum, peppermint, vanilla,
mango, raspberry, or strawberry flavors will now need to be sold in a
segregated area of a convenience or grocery stores if the alcohol
content is above 8 percent and it is not what we all commonly refer to
and is known to be traditionally brewed malt beverages (beer).
LEGISLATIVE HISTORY:
2011/12 - A6914A - Held in Economic Development
FISCAL IMPLICATIONS:None.
LOCAL FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect 180 days after it shall
have become law.
