S T A T E O F N E W Y O R K
________________________________________________________________________
9859--A
I N A S S E M B L Y
February 3, 2010
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Introduced by M. of A. MAGEE -- read once and referred to the Committee
on Agriculture -- reported and referred to the Committee on Codes --
reported and referred to the Committee on Rules -- Rules Committee
discharged, bill amended, ordered reprinted as amended and recommitted
to the Committee on Rules
AN ACT to amend the agriculture and markets law, the public health law
and the alcoholic beverage control law, in relation to frozen desserts
made with wine
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 14 and 15 of section 200 of the agriculture
and markets law, as added by chapter 189 of the laws of 2008, the open-
ing paragraph of subparagraph (iii) of paragraph (a) of subdivision 15
as amended by chapter 341 of the laws of 2009, is amended to read as
follows:
14. If it is ice cream OR OTHER FROZEN DESSERTS made with wine bearing
or containing more than five percent of alcohol by volume.
15. With respect to the manufacture and sale of ice cream OR OTHER
FROZEN DESSERTS made with wine bearing or containing more than one-half
of one percent, but not more than five percent of alcohol by volume:
(a) No person shall sell at retail packages of ice cream OR OTHER
FROZEN DESSERTS made with wine for consumption off the premises where
sold unless:
(i) each package is a sealed package containing at least one pint, as
received from the manufacturer or distributor;
(ii) each sealed package containing at least one pint, as received
from the manufacturer or distributor, in a format to be established or
approved by the commissioner, prominently bears the following state-
ments:
(A) The sale of this product to individuals under the age of twenty-
one years is prohibited.
(B) This product is made with wine and contains alcohol up to five
percent by volume.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15489-09-0
A. 9859--A 2
(C) Notice. This product contains alcohol used as a flavoring and, as
with any product that contains alcohol:
(1) women should not consume alcohol during pregnancy because of the
risk of birth defects, and
(2) consumption of alcohol impairs your ability to drive a car or
operate machinery, and may cause health problems.
(iii) the following advisory, on a sign or poster not less than seven
inches by five inches, in a format to be established or approved by the
commissioner, is displayed prominently at each location where packages
of [wine] ice cream OR OTHER FROZEN DESSERTS MADE WITH WINE are made
available to the public:
"THIS AREA CONTAINS WINE ICE CREAM AND OTHER FROZEN DESSERTS
MADE WITH WINE
The sale of WINE ICE CREAM OR OTHER FROZEN DESSERTS MADE WITH WINE to
individuals under the age of twenty-one years is prohibited.
WINE ICE CREAM [contains] OR OTHER FROZEN DESSERTS MADE WITH WINE
CONTAIN alcohol up to five percent by volume.
NOTICE: WINE ICE CREAM [contains] OR OTHER FROZEN DESSERTS MADE WITH
WINE CONTAIN alcohol used as a flavoring and, as with any product that
contains alcohol:
(1) women should not consume alcohol during pregnancy because of the
risk of birth defects, and
(2) consumption of alcohol impairs your ability to drive a car or
operate machinery, and may cause health problems.
IT IS A VIOLATION PUNISHABLE UNDER LAW FOR ANY PERSON UNDER THE AGE OF
TWENTY-ONE TO PRESENT ANY WRITTEN EVIDENCE OF AGE WHICH IS FALSE, FRAU-
DULENT OR NOT ACTUALLY HIS OWN FOR THE PURPOSE OF ATTEMPTING TO PURCHASE
WINE ICE CREAM OR OTHER FROZEN DESSERTS MADE WITH WINE."
(b) No manufacturer and/or distributor of ice cream OR OTHER FROZEN
DESSERTS made with wine shall sell such product:
(i) to a person intending to sell at retail individual servings of
[wine] ice cream OR OTHER FROZEN DESSERTS MADE WITH WINE, unless, with
each shipment, such manufacturer and/or distributor provides:
(A) a written notice that individual servings of wine ice cream OR
OTHER FROZEN DESSERTS MADE WITH WINE may be sold at retail only where
the retailer complies with all of the requirements set forth in para-
graph (a) of this subdivision, and
(B) a written copy of such requirements; and
(ii) to a person intending to sell at retail packages of wine ice
cream OR OTHER FROZEN DESSERTS MADE WITH WINE for consumption off the
premises, unless, with each shipment, such manufacturer and/or distribu-
tor provides:
(A) a written notice that packages of wine ice cream OR OTHER FROZEN
DESSERTS MADE WITH WINE may be sold at retail only where the retailer
complies with all of the requirements set forth in paragraph (a) of this
subdivision, and
(B) a written copy of such requirements.
S 2. Section 1352-c of the public health law, as added by chapter 189
of the laws of 2008, is amended to read as follows:
S 1352-c. Ice cream OR OTHER FROZEN DESSERTS made with wine. No person
shall sell at retail individual servings of ice cream OR OTHER FROZEN
DESSERTS made with wine bearing or containing more than one-half of one
percent but not more than five percent of alcohol by volume, unless the
following statements are prominently displayed on the printed menu (or,
if no printed menus are used, on the menu board or sign setting forth
A. 9859--A 3
the bill of fare) immediately adjacent to the listing of the item or
items of wine ice cream OR OTHER FROZEN DESSERTS being offered:
1. The sale of wine ice cream OR OTHER FROZEN DESSERTS to individuals
under the age of twenty-one is prohibited.
2. Wine ice cream [contains] OR OTHER FROZEN DESSERTS CONTAIN alcohol
up to five percent by volume.
3. Notice: Wine ice cream [contains] OR OTHER FROZEN DESSERTS CONTAIN
alcohol used as a flavoring and, as with any product that contains alco-
hol:
(a) women should not consume alcohol during pregnancy because of the
risk of birth defects, and
(b) consumption of alcohol impairs your ability to drive a car or
operate machinery, and may cause health problems.
S 3. Subdivision 1 of section 3 of the alcoholic beverage control
law, as amended by chapter 189 of the laws of 2008, is amended to read
as follows:
1. "Alcoholic beverage" or "beverage" mean and include alcohol, spir-
its, liquor, wine, beer, cider and every liquid or solid, patented or
not, containing alcohol, spirits, wine or beer and capable of being
consumed by a human being, and any warehouse receipt, certificate,
contract or other document pertaining thereto; except that confectionery
containing alcohol as provided by subdivision twelve of section two
hundred of the agriculture and markets law and ice cream AND OTHER
FROZEN DESSERTS made with wine as provided in subdivision fifteen of
section two hundred of the agriculture and markets law shall not be
regulated as an "alcoholic beverage" or "beverage" within the meaning of
this section where the sale, delivery or giving away is to a person aged
twenty-one years or older. The sale, delivery or giving away of ice
cream made with wine to a person under the age of twenty-one years may
be prosecuted administratively and/or criminally in accordance with the
provisions of this chapter.
S 4. This act shall take effect on the thirtieth day after it shall
have become a law.