Assembly Bill A2888A

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

                                 2888--A
                                                        Cal. No. 251

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 20, 2011
                               ___________

Introduced  by M. of A. MAGEE -- Multi-Sponsored by -- M. of A. GALEF --
  read once and referred to the Committee  on  Agriculture  --  reported
  from  committee,  advanced  to  a  third  reading, amended and ordered
  reprinted, retaining its place on the order of third reading

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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03566-02-1
              

A. 2888--A                          2

  (B)  This  product  is  made with wine and contains alcohol up to five
percent by volume.
  (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 OR 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,

A. 2888--A                          3

if no printed menus are used, on the menu board or  sign  setting  forth
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.