BILL NUMBER:S2842

TITLE OF BILL:
An act
to amend the alcoholic beverage control law, in relation to providing
enhanced penalties for licensees who sell certain alcoholic beverages to
persons under the age of twenty-one years

PURPOSE:
The purpose of this bill is to increase the criminal penalties for
those who sell caffeinated alcoholic Beverages (CABS) to persons
under the age of 21. CABs are defined, under this bill, as a beverage
that has a combination of two percent alcohol by volume and 5
milligrams of caffeine per ounce or other stimulants that have a
similar affect. 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.

SUMMARY OF PROVISIONS:
Section 1: Adds a new ABC Law section 65(7) to add to the list of
prohibited sales of alcohol, the sale of CABs 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 CABs 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 indeterminate sentence of between 1 and 3 years in prison,
or both.

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 vitamins.

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, convenience stores, and bodegas. These sales points are
also the same place that teenagers can hang around at and purchase
soda and snacks. 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, particularly among underage


drinkers, which combines 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 use of
CABs by persons under the age of 21, include:

1) Individuals, particularly those under the age of 3D, who combine
alcohol with stimulants engage in riskier drinking behaviors and
drink a greater amount 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 those who are under 21 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 - 21. 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 21 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 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-alcoholic 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.

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 levels, and
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 increase criminal penalties for those who
sell, deliver or give such dangerous alcoholic beverages to persons
under the age of 21. The two per centum of alcohol by volume standard
contained in this bill is slightly less than that which is contained
in beer which is generally between 3.2 % to 5% alcohol content by
volume.
The Five milligrams per ounce of caffeine is above the amount of
caffeine found in most sodas (i.e., 2 to 4.9 mg of caffeine), but is
less than that which is found in coffee or tea (i.e., 7 to 20 mg of
caffeine).


While the CAB thresholds contained in this bill for alcohol and caffeine
may sound low, the combination of these two ingredients can be
addicting and sometimes can have a lethal affect, particularly when
consumed by underage drinkers. Indeed, most CABs have an average
alcohol content, by volume of between 5 percent and 12 percent. These
high level alcohol beverages are combined with caffeine levels well
in excess of 10 mgjoz to 50 mgjoz or have other stimulants such as
guarana, ginseng, or tarine added. This combination makes these
beverages highly unsuitable for consumption by persons under the age
of 21. Further, these CABs are formulated to taste sweet with fruit
flavor overtones that mask the taste of alcohol present in these
drinks specifically to target underage drinkers.

In sum, they are manufactured specifically with the idea of gearing
their sale to persons under the age of 21. These CABs are also
packaged to look like other energy drinks which are now already being
consumed by underage drinkers. An while it may be an anomaly to have
a heightened level of punishment for selling CABs to persons under
the age of 21 when compared to selling spirits or wine, CABs are much
more attractive to minors, hence the need to a heightened penalty for
the sale of these beverages to those under the age of 21.

For all of the reasons above, New York must change its public policy
to dampen the sale and consumption of these dangerous beverages to
persons under the age of 21.

LEGISLATIVE HISTORY:
2010 - S.8508 - Referred to Rules

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect 30 days after it shall have become law.