Directs the state liquor authority to require certain labeling of alcoholic beverages containing caffeine or other stimulants; requires retail licensees for off-premises consumption to sell alcoholic beverages containing stimulants in an area of the licensed premises separate from that where other alcoholic beverages and energy drinks are sold.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8443
SPONSOR: Ortiz (MS) TITLE OF BILL: An act to amend the alcoholic beverage control law, in
relation to requiring the segregation of certain alcoholic beverages
with a stimulant sold for off-premises consumption and the labeling of
containers containing certain alcoholic beverages
PURPOSE: This bill expands the State Liquor Authority's (SLA) ability
to review the labels of all caffeinated alcoholic beverage containers
(hereinafter CABs). CABs are defined, under this bill, as a beverage
with a combination of two percent alcohol by volume and 5 milligrams of
caffeine per ounce. These caffeinated alcoholic beverages (CABs) are now
being actively marketed to and increasingly used by those who are
between the ages of 14 to 25. Enacting more rigorous labeling standards
and consumer disclosure warnings should help to ensure that such
products cannot be confused with other high energy drinks that do not
contain alcohol and which can be legally purchased by minors.
SUMMARY OF PROVISIONS:
Section 1: Amends ABC Law section 105 to add a new paragraph (13) to
require licenses that sell CABs for off-premise consumption to post a
warning notice about the possible adverse health effects of CABs, that
they are alcoholic beverages that should be used with caution, and that
such beverages cannot be consumed by persons under the age of 21. The
SLA is to approve, by regulation, the size and text of such sign to be
posted in such CAB section.
Section 2: Amends ABC Law section 107-a(2) to enact more stringent label
approval standards for CABs. Under current state law, the labels on all
containers of beer, malt liquors, and liquors that have been approved by
the Federal Alcohol & Tobacco Tax & Trade Bureau (TTB) are deemed
approved upon filing with the State Liquor Authority (SLA) 30 days after
such label is filed with the SLA. This bill gives the SLA 120 days to
review such label applications so that the Authority has sufficient time
to review each application for a label for caffeinated alcoholic bever-
ages.
Under this bill, the SLA can only approve container labels. or beverage
containers that have a disclosure warning affixed to such container that
states: A) this is a combination caffeinated alcohol beverage and the
health effects of such consumption are unknown at this time, B) however,
over consumption may cause future cardiovascular or neurological health
problems, C) the stimulant in this beverage may mask the impairment
qualities of the alcohol that is also in this product, D) the use of
motor vehicles and other machinery should be avoided after consuming
this product.
In addition, the SLA, when reviewing a container label must ensure that
such label cannot easily be confused with other energy drinks or bever-
ages. Further, such label should not be designed so as to be attractive
to or encourage the consumption of such product by persons under the age
of 21. The container label may be approved if a disclosure warning
statement similar to the statements contained in Paragraph (2) (a)of the
bill are affixed to the container. In addition, such disclosure warning
statement must indicate that this beverage contains alcohol and cannot
be sold to or consumed by persons under the age of 21.
Under this bill, a CAB is defined as being a beverage that has over 2 %
of alcohol by volume and 5 milligrams per ounce of caffeine or any other
stimulant that has a similar effect. As a point of reference with CABs,
carbonated sodas range between 3 - 5 mg/oz of caffeine, coffee contains
between 9 - 18 mg/oz, and energy drinks commonly range between 9.5 - 175
mg/oz, with the mean average being between 9 - 20 mg/oz, with some
outlying beverages containing 500 mg/oz. Frozen desserts such as coffee
ice cream have between 7 - 10 mg/oz, and milk chocolate contains about 6
mg/oz.
Section 3: Amends ABC Law section 107-a(2)so that labels filed with the
SLA are not automatically deemed approved until 120 days after filing
with the authority, instead of 30 days as is now the case for all label
approvals for beer, malt liquor, or liquor.
JUSTIFICATION: Energy drinks are designed to make individuals "feel"
more aware and awake. To do this, such drinks contain stimulants such as
caffeine, guarana, or ginseng, and may also contain proteins and vita-
mins.
Energy drinks are the fastest growing sector in the beverage market.
Energy drinks are primarily marketed to and consumed by persons between
14 35 years old. One of the leading brands in this market, Red Bull, was
created in Austria and introduced into the U.S. market in 1997. Red Bull
and other energy drinks, have become popular mixers at bars and night
clubs, with the Vodka Red Bull being one of the more popular drinks that
mix alcohol and caffeine.
The popularity of mixing energy drinks with alcohol at bars has led to
the introduction of energy drinks premixed with alcohol. Many of these
beverages are primarily malt based beverages, and therefore, can be sold
in the same places as beer and malt liquor, i.e., supermarkets, conven-
ience stores, and bodegas. High alcohol CABs such as Joose and Four Loko
are examples of this trend.
Clinical and field studies conducted in the past few years have found
that the over consumption of CABs that combine high amounts of alcohol
and stimulants, such as caffeine, raises significant public health and
safety concerns for both the consumer and for the public at large. Among
the "Top 10" concerns raised by researchers about CABs include:
1) Individuals, particularly those under the age of 30, who combine
alcohol with stimulants engage in riskier drinking behaviors and drink a
greater amount in each session. The stimulants used in CABs make indi-
viduals feel more aware, but this "feeling" of awareness does not actu-
ally decrease the levels of impairment or coordination, reflexes, and
judgment that result from excessive alcohol consumption.
2) Individuals are less able to judge their actual levels of inebriation
when consuming CABs. This can lead individuals to consume more alcohol
than they would otherwise consume if just consuming an alcoholic bever-
age alone. Normally, with the consumption of alcohol (a depressant),
consumption goes down as the drinking event progresses because the
subject becomes more tired. Instead, with CABs, the consumer becomes
drunk, but more awake, which can lead to the further consumption of
alcohol. The Marion Institute stated that this product "brilliantly
keeps them alert and wanting to keep drinking the product". Other
studies have demonstrated that consumption of such beverages leads to
significantly higher levels of episodic drinking and episodes of weekly
drunkenness. There have been examples in Westchester County of underage
persons getting alcohol poisoning because they drank CABs to excess and
did not have the inhibition needed to stop consuming these CABs.
3) Consumption of CABs makes such persons think that they can mistakenly
undertake dangerous activities such as driving an automobile.
4) CABs are commonly consumed by underage drinkers and those who are
under 25 years of age who are generally less sophisticated about when
and how to properly consume alcoholic beverages. This can lead to higher
incidences of physical injury, sexual assault, becoming the victim of
sexual assault, and alcohol poisoning. In addition, underage consumers
tend to already have underdeveloped decision making skills, which the
consumption of alcohol clouds further.
5) CAB manufacturers have aggressively geared their product packaging,
marketing programs, and the taste of their product to further draw
consumers between the ages of 14 - 25. Currently, the existing CAB
market is male dominated, however, manufacturers are shifting their
attention to obtain a larger female consumer base, by offering CABs that
are touted as being "light", "sugar-free" or "low carb". In sum, the
trend is for more individuals between the ages of 14 and 35 to consume
such products, not less.
6) The long term health effects of consuming high levels of alcohol (a
depressant) and caffeine (a stimulant) are not known. However, having
two agents in the same beverage that have opposite effects has generally
been considered to be detrimental to long term health. The Federal Food
and Drug Administration (FDA) is now looking into the safety and legali-
ty of these beverages. Those experimental studies that have been
conducted have not established the safety of co-ingesting caffeine and
alcohol, but there are indications that it may heighten the risk of
cardiovascular and neurological damage.
7) Both alcohol and caffeine are diuretics; therefore, the combination
of these two substances in one beverage can leave the consumer severely
dehydrated. Further, the high sugar levels of CABs does speed up the
absorption of alcohol into the blood stream.
8) The prime market for CABs and for all energy drinks is the same,
persons between 14 and 25 years of age. In general, CABs are sold at
relatively low cost to a demographic group that does not have a lot of
money. Further, these beverages are priced much lower than beer to
retain and expand market share. While many CABs have alcohol content
well above beer and sometimes at the level of wine, its excise tax rate
is assigned at the same level as beer, the lowest level of excise taxes
levied and collected. This low cost of the product makes them extra
attractive to young people, who have been shown to be very price
conscious.
9) The labeling of CABs is very similar to that of non-alcoholic energy
drinks, and meant to be attractive to young people. Energy drink maker
Rockstar, introduced an alcoholic version called Rockstar 21 and the
extreme similarity in labeling of the company's alcoholic and non-alco-
holic energy drinks lead to an outcry which forced Rockstar 21 from the
market. Other alcoholic energy drink makers continue to produce cans
that are brightly colored with bold designs meant to project an image of
energy common with regular energy drinks and inherently more attractive
to younger consumers. With new brands of CABs and energy drinks going on
the market all of the time, this lack of clear labeling as to what is
alcoholic and not alcoholic can confuse store personnel and police offi-
cers as to which products have alcohol or not. This can lead to law
enforcement problems in accurately identifying which beverages can be
sold to or possessed by minors and which beverages are subject to open
container laws.
10) Easy access to CABs by underage drinkers in convenient stores and
bodegas can encourage youth to start drinking alcohol earlier in life
and can significantly increase alcoholism later in life and the manifes-
tation of other addictive behaviors, such as gambling and substance
abuse, in the future.
The rapid expansion in the market share of CABs has raised questions
about how these drinks are formulated, their caffeine levels, and alco-
hol content, and whether they are properly classified as malt beverages
under federal and state law. In 2007, 28 state Attorney Generals
contacted the TTB to inquire about the questions outlined above.
Further, the FDA is making similar inquiries about the safety of consum-
ing such beverages.
The purpose of this bill is three fold. First, it is to tighten the
labeling requirements of CABs so that a notice is placed on the beverage
container and at the point of sale to warn its users that repeated use
of such products may be unhealthy, particularly for those under the age
of 25.
Second, these beverages tend to be consumed by persons under the age of
30 and those who are not legally able to purchase alcoholic beverages.
From the perspective of law enforcement officials and store sales
personnel, the look of labels for certain high energy drinks that have
alcohol and do not have alcohol are indistinguishable. Therefore, it is
difficult for law enforcement to screen underage drinkers or those
persons who are violating the open container law. Further, for store
personnel, it is also difficult to differentiate between alcoholic and
non-alcoholic beverages. This bill ensures that such containers are
easily distinguishable so that alcoholic beverages can be clearly iden-
tified from non-alcoholic beverages.
Third, caffeinated alcohol drinks are overwhelmingly consumed by persons
under the age of 30, and many are consumed by underage drinkers. This
bill ensures that these beverages should not be packaged to attract
underage consumers of alcohol. A similar standard has been instituted
for commercials and advertising related to tobacco products, including
their packaging, for many decades.
LEGISLATIVE HISTORY: 2011/12: A5169 Held in Economic Development
2013/14: A5873 Referred to Economic Development
FISCAL IMPLICATIONS: None
LOCAL FISCAL IMPLICATIONS: None
EFFECTIVE DATE: This act shall take effect 270 days after it shall
have become law, provided however, the State Liquor Authority shall
promulgate rules and regulations to implement this act within 120 days
of the effective date of this act
STATE OF NEW YORK
________________________________________________________________________
8443
2015-2016 Regular Sessions
IN ASSEMBLY
October 9, 2015
___________
Introduced by M. of A. ORTIZ, ROBINSON, AUBRY -- Multi-Sponsored by --
M. of A. ARROYO, THIELE -- read once and referred to the Committee on
Economic Development
AN ACT to amend the alcoholic beverage control law, in relation to
requiring the segregation of certain alcoholic beverages with a stimu-
lant sold for off-premises consumption and the labeling of containers
containing certain alcoholic beverages
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 105 of the alcoholic beverage control law is
2 amended by adding a new subdivision 13 to read as follows:
3 13. (a) Each retail license for off-premises consumption that sells
4 alcoholic beverages that contain more than two per centum alcohol by
5 volume, in combination with more than five milligrams per ounce of
6 caffeine or any other stimulant including, but not limited to guarana,
7 ginseng or taurine that has an equivalent effect as such quantity of
8 caffeine shall sell such alcoholic beverages in an area of the licensed
9 premises that is segregated from the area where other beverages, includ-
10 ing alcoholic beverages, are sold. No such alcoholic beverages contain-
11 ing a stimulant shall be commingled with other alcoholic beverages or
12 energy drinks.
13 (b) At the front of the segregated area of the licensed premises where
14 alcoholic beverages containing a stimulant are sold, the licensee shall
15 conspicuously post a sign containing the notices and warnings provided
16 for in paragraphs (a), (b) and (c) of subdivision one of section one
17 hundred seven-a of this article. Furthermore, such sign shall state
18 that these beverages contain alcohol and by law cannot legally be
19 consumed by persons under the age of twenty-one years, and that these
20 beverages should not be confused with energy drinks. The state liquor
21 authority shall be authorized to promulgate rules and regulations
22 providing for the form and content of such notices and warnings.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04191-01-5
A. 8443 2
1 § 2. The closing paragraph of subdivision 1 of section 107-a of the
2 alcoholic beverage control law, as amended by chapter 354 of the laws of
3 2013, is amended to read as follows:
4 Such regulations shall be calculated to prohibit deception of the
5 consumer; to afford him or her adequate information as to quality and
6 identity; and to achieve national uniformity in so far as possible. In
7 addition, for the approval of labels for containers of any alcoholic
8 beverage that contains more than two per centum alcohol by volume, in
9 combination with more than five milligrams per ounce of caffeine or any
10 other stimulant including, but not limited to guarana, ginseng or
11 taurine that has an equivalent effect as such quantity of caffeine, the
12 label or container thereof must:
13 (a) have a disclosure that is either part of the label or affixed to
14 the container that advises purchasers that this alcoholic beverage (i)
15 contains a combination of high concentrations of alcohol (a depressant)
16 and caffeine (a stimulant) or another stimulant, and that the health
17 effects of such combination are not completely known; (ii) over consump-
18 tion of this alcoholic beverage may cause future cardiovascular or
19 neurological problems, higher risk of accidental physical injury to the
20 consumer or others, or alcohol poisoning; (iii) the stimulant in this
21 alcoholic beverage may mask the level of impairment and disorientation
22 that can occur due to the amount of alcohol that is also contained in
23 this beverage; and (iv) the operation of motor vehicles and other
24 machinery should be avoided after consuming this alcoholic beverage;
25 (b) be designed so that it cannot be confused with other energy drinks
26 or beverages that are not alcoholic beverages and are legally available
27 for sale to persons under the age of twenty-one years. Such design may
28 be accomplished by a label design that places a stripe or other indica-
29 tor to show that this beverage contains alcohol or by affixing the
30 disclosure required by paragraph (a) of this subdivision that also
31 clearly indicates that the beverage contains alcohol and that it is
32 illegal to be consumed by any person under the age of twenty-one years;
33 and
34 (c) be designed so as not to be attractive to or encourage the
35 consumption of such alcoholic beverage by persons under the age of twen-
36 ty-one years. Such design may be accomplished by a label design that
37 clearly indicates that this is an alcoholic beverage that cannot be
38 legally consumed by persons under the age of twenty-one years or by the
39 prominent affixing of the disclosure required by paragraph (a) of this
40 subdivision.
41 § 3. Clause (ii) of subparagraph 2 of paragraph (a) of subdivision 4
42 of section 107-a of the alcoholic beverage control law, as amended by
43 chapter 354 of the laws of 2013, is amended to read as follows:
44 (ii) the authority does not deny such application within thirty days
45 after receipt; provided, however, that with respect to any alcoholic
46 beverage that contain a combination of alcohol and caffeine or other
47 stimulant, as described in subdivision one of this section, the authori-
48 ty does not deny such application within one hundred twenty days after
49 receipt so that the authority has a sufficient period of time to review
50 such label and ensure that the requirements established in such subdivi-
51 sion are complied with.
52 § 4. This act shall take effect on the two hundred seventieth day
53 after it shall have become a law. Effective immediately, the state
54 liquor authority is authorized to add, amend and/or repeal any rules and
55 regulations necessary to implement the provisions of this act within one
56 hundred twenty days after it shall have become a law.
