senate Bill S3889A

Prohibits the sale and delivery of certain caffeinated or stimulant-enhanced alcoholic beverages

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 08 / Mar / 2011
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 09 / Mar / 2011
    • COMMITTEE DISCHARGED AND COMMITTED TO ALCOHOLISM AND DRUG ABUSE
  • 28 / Mar / 2011
    • REPORTED AND COMMITTED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 05 / Apr / 2011
    • 1ST REPORT CAL.310
  • 06 / Apr / 2011
    • 2ND REPORT CAL.
  • 11 / Apr / 2011
    • ADVANCED TO THIRD READING
  • 09 / May / 2011
    • AMENDED ON THIRD READING 3889A
  • 06 / Jun / 2011
    • PASSED SENATE
  • 06 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 06 / Jun / 2011
    • REFERRED TO ECONOMIC DEVELOPMENT
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO ALCOHOLISM AND DRUG ABUSE
  • 30 / Jan / 2012
    • 1ST REPORT CAL.142
  • 31 / Jan / 2012
    • 2ND REPORT CAL.
  • 06 / Feb / 2012
    • ADVANCED TO THIRD READING
  • 01 / Mar / 2012
    • PASSED SENATE
  • 01 / Mar / 2012
    • DELIVERED TO ASSEMBLY
  • 01 / Mar / 2012
    • REFERRED TO ECONOMIC DEVELOPMENT

Summary

Prohibits the sale and delivery of certain caffeinated or stimulant-enhanced alcoholic beverages.

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Bill Details

See Assembly Version of this Bill:
A5171A
Versions:
S3889
S3889A
Legislative Cycle:
2011-2012
Current Committee:
Law Section:
Alcoholic Beverage Control Law
Laws Affected:
Amd ยงยง3 & 100, ABC L
Versions Introduced in 2009-2010 Legislative Cycle:
S8509, S8509

Sponsor Memo

BILL NUMBER:S3889A REVISED 05/11/11

TITLE OF BILL:
An act
to amend the alcoholic beverage control law, in relation to prohibiting
the sale of caffeinated or stimulant-enhanced alcoholic beverages

PURPOSE:
The purpose of this bill is to ban the sale of caffeinated or
stimulant enhanced alcoholic beverages (hereinafter CABs) in New
York. CABs are defined, under this bill, as any beer (a fermented
malt beverage) or wine product (wine coolers) that contains more than
6% of alcohol or more in combination with and "unsafe food additive"
as such term is defined in the Federal Food, Drug, and Cosmetic Act.
Such unsafe food additive shall include, but need not be limited to
caffeine or other stimulants added directly to such beverage.

These caffeinated or stimulant-enhanced alcoholic beverages (CABs) are
now being actively marketed to and increasingly used by those who are
between the ages of 14 to 25. Currently, there is concern that CABs
have questionable health effects on those who consume the product,
especially those under the age of 25.

SUMMARY OF PROVISIONS:

Section 1: Amends ABC Law section 3 to add a new definition (7-c) to
the ABC Law to define "Caffeinated or stimulant-enhanced alcoholic
beverages". This provision was added to ensure that all CABs that are
currently sold in stores can no longer be sold in the state by any
retailer of beer or a wine product. Under this definition, a CAB is
any beer or wine product that has an alcohol content over 6% alcohol
that also has the addition of an unsafe food additive such as
caffeine or other stimulants. Under current law, most CABs are
considered to be a "beer" or malt liquor product, hence they are able
to be sold in convenience stores and grocery stores. The same venue
which is easily accessible to minors to purchase or otherwise secure
such beverages.

Any substance that is reasonably expected to become a component of
food is a "food additive" that is subject to premarket approval by
FDA, unless the substance is "generally recognized as safe" (GRAS).
The GRAS amounts are arrived at by qualified experts qualified with
scientific training and experience to evaluate safety under the
conditions of its intended use, or which meets one of the other
exclusions from the food additive definition in section 201(s) of the
Federal Food, Drug and Cosmetic Act (FFDCA). Any food additive that
is intended to have a technical effect in the food is deemed unsafe
unless it either conforms to the terms of a regulation prescribing
its use or to an exemption for investigational use. Otherwise, in
accordance
with section 409 of the Act, the substance is an unsafe food additive.
Any food that contains an unsafe food additive is adulterated under
section 402 (a) (2) (C) of the FFDCA.

This bill is not directed at alcoholic beverages that only contain
caffeine that is a natural constituent of one or more of their


ingredients, such as a coffee or tea flavorings. The alcoholic
beverages that are the subject of this bill are the beverages to
which the manufacturer has directly added caffeine as a separate
ingredient.

As an example, FDA has provided by regulation that caffeine up to a
level of .02 percent is GRAS when used in cola-type beverages in
accordance with good manufacturing practice (21 CFR 182.1180).
However, this regulation does not confer GRAS status to the addition
of caffeine to alcoholic beverages or at higher use levels.

Section 2: Adds a new ABC Law section 100(8) that provides for a
general prohibition for the sale, delivery, or giving away of any
caffeinated or stimulant-enhanced alcoholic beverage (CABs)by any
holder of an alcoholic beverage license or permittee or by any other
person in New York.

JUSTIFICATION:

Energy drinks are designed to make individuals "feel" more aware and
awake. To do this, such drinks contain stimulants such as caffeine,
guarana, ginseng, taurine, or wormwood oil and may also contain
proteins and vitamins. Energy drinks are the fastest growing sector
in the beverage market. Energy drinks are primarily marketed to and
consumed by persons between the ages of 14 to 35 years old.

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 or partially malt based beverages or
wine products, and therefore, can be sold in the same places as beer,
malt liquor, and wine coolers i.e.,supermarkets, convenience 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 the sale and
consumption of CABs include:

1) Individuals, particularly those under the age of 3D, who combine
alcohol with stimulants engage in riskier drinking behaviors and
drink a greater amounts in each session. The stimulants used in CABs
make individuals feel more aware, but this "feeling" of awareness
does not actually 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 beverage 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, in a safe manner, 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 legality 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 low 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. 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
officers 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
manifestation 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 Or other
stimulant levels added to the beverage, the high alcohol 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 consuming such beverages.

The purpose of this bill is simple, to ban the sale of caffeinated or
stimulant-enhanced alcoholic beverages because these products are
dangerous to its consumers and to the general public due to public
safety and public health concerns, particularly for those under the
age of 25.

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 bans the
sale of CABs so that there will be no way to confuse alcoholic based
energy drinks from those that do not contain alcohol.

LEGISLATIVE HISTORY:

2010 - S.8509 - REFERRED TO RULES

FISCAL IMPLICATIONS:

None.

LOCAL FISCAL IMPLICATIONS:

None.


EFFECTIVE DATE:

This act shall take effect 180 days after it shall have become law, so
that the state Liquor Authority may have sufficient time to
promulgate rules and regulations to implement this act. Further, the
effective date was designed so that current inventories of CAB's can
be removed from sale or transport before this bill goes into effect.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3889--A
    Cal. No. 310

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 8, 2011
                               ___________

Introduced  by  Sens. KLEIN, AVELLA, ESPAILLAT -- read twice and ordered
  printed, and when printed to be committed to the Committee on Investi-
  gations and Government Operations --  committee  discharged  and  said
  bill  committed  to  the  Committee  on  Alcoholism  and Drug Abuse --
  reported favorably from said committee and committed to the  Committee
  on  Commerce,  Economic  Development  and  Small  Business -- reported
  favorably from said committee, ordered to  first  and  second  report,
  ordered  to  a third reading, amended and ordered reprinted, retaining
  its place in the order of third reading

AN ACT to amend the alcoholic  beverage  control  law,  in  relation  to
  prohibiting  the  sale  of caffeinated or stimulant-enhanced alcoholic
  beverages

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 3 of the alcoholic beverage control law is amended
by adding a new subdivision 7-c to read as follows:
  7-C. "CAFFEINATED OR STIMULANT-ENHANCED ALCOHOLIC BEVERAGE" MEANS  AND
INCLUDES  A  BEER OR WINE PRODUCT THAT CONTAINS MORE THAN SIX PER CENTUM
ALCOHOL BY VOLUME AND AN UNSAFE FOOD ADDITIVE. FOR THE PURPOSES OF  THIS
SUBDIVISION,  "UNSAFE  FOOD  ADDITIVE"  SHALL  HAVE  THE SAME MEANING AS
PROVIDED IN THE FEDERAL FOOD, DRUG, AND COSMETIC ACT (21 U.S.C.  S  348)
AND  SHALL  INCLUDE, BUT NOT BE LIMITED TO, CAFFEINE OR OTHER STIMULANTS
DIRECTLY ADDED TO AN ALCOHOLIC BEVERAGE AS A SEPARATE INGREDIENT WITHOUT
APPROVAL BY FEDERAL REGULATION OR ACKNOWLEDGEMENT  AS  GENERALLY  RECOG-
NIZED AS SAFE.
  S  2.  Section 100 of the alcoholic beverage control law is amended by
adding a new subdivision 8 to read as follows:
  8. NO LICENSEE, PERMITTEE OR PERSON SHALL SELL, DELIVER OR GIVE  AWAY,
OR  CAUSE,  PERMIT  OR  PROCURE  TO BE SOLD, DELIVERED OR GIVEN AWAY ANY
CAFFEINATED OR STIMULANT-ENHANCED  ALCOHOLIC  BEVERAGE,  AS  DEFINED  IN
SUBDIVISION SEVEN-C OF SECTION THREE OF THIS CHAPTER.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05014-04-1

S. 3889--A                          2

  S 3. This act shall take effect on the one hundred eightieth day after
it  shall  have  become  a law; provided that the provisions of this act
shall not be deemed to prohibit any person, licensed to  sell  alcoholic
beverages  at  retail  for on-premises or off-premises consumption, from
selling, delivering or giving away any caffeinated or stimulant-enhanced
alcoholic  beverage  to  a  distributor or manufacturer of such beverage
within sixty days of the effective date of this act when the caffeinated
or stimulant-enhanced beverage was received by the retail licensee prior
to the effective date of this  act.  Effective  immediately,  the  state
liquor authority is authorized to amend, add and/or repeal any rules and
regulations  necessary  to  implement  the  provisions of this act on or
before its effective date.

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