S T A T E O F N E W Y O R K
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5922
2013-2014 Regular Sessions
I N A S S E M B L Y
March 8, 2013
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Introduced by M. of A. ORTIZ -- read once and referred to the Committee
on Economic Development
AN ACT to amend the alcoholic beverage control law, in relation to regu-
lating the retail sale of flavored malt beverages
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 12-c of section 3 of the alcoholic beverage
control law, as renumbered by chapter 366 of the laws of 1992, is renum-
bered subdivision 12-d and a new subdivision 12-c is added to read as
follows:
12-C. "FLAVORED MALT BEVERAGE" MEANS AND INCLUDES ANY ALCOHOLIC BEVER-
AGE OF ANY NAME OR DESCRIPTION THAT IS MANUFACTURED FROM MALT, WHOLLY OR
IN PART, OR FROM ANY SUBSTITUTE THEREFOR; AND CONTAINING MORE THAN EIGHT
PER CENTUM ALCOHOL BY VOLUME WHICH IS A FERMENTED PRODUCT FOR WHICH THE
FORMULA THEREOF IS REQUIRED TO BE FILED WITH THE FEDERAL ALCOHOL AND
TOBACCO TAX AND TRADE BUREAU PURSUANT TO 27 CODE OF FEDERAL REGULATIONS
S 25.55 (A), AS SUCH REGULATIONS SHALL BE AMENDED FROM TIME TO TIME.
S 2. Section 65 of the alcoholic beverage control law is amended by
adding a new subdivision 3-a to read as follows:
3-A. NO PERSON, OR HIS OR HER AGENT OR EMPLOYEE, SHALL SELL, DELIVER
OR GIVE AWAY, OR CAUSE, PERMIT OR PROCURE TO BE SOLD, DELIVERED OR GIVEN
AWAY TO ANY PERSON, ACTUALLY OR APPARENTLY, UNDER THE AGE OF TWENTY-ONE
YEARS, ANY FLAVORED MALT BEVERAGE. A VIOLATION OF THIS SUBDIVISION SHALL
BE A CLASS E FELONY AS DEFINED IN THE PENAL LAW.
S 3. 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 AT
RETAIL IN THIS STATE ANY FLAVORED MALT BEVERAGE IN ANY CONTAINER HAVING
A VOLUME IN EXCESS OF TWELVE OUNCES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09616-01-3
A. 5922 2
S 4. Section 105 of the alcoholic beverage control law is amended by
adding a new subdivision 13 to read as follows:
13. (A) EACH RETAIL LICENSEE FOR OFF-PREMISES CONSUMPTION THAT SELLS
FLAVORED MALT BEVERAGES SHALL SELL SUCH BEVERAGES IN AN AREA OF THE
LICENSED PREMISES THAT IS SEGREGATED FROM THE AREA WHERE OTHER BEVERAG-
ES, INCLUDING BEERS WHICH ARE NOT FLAVORED MALT BEVERAGES, ARE SOLD. NO
FLAVORED MALT BEVERAGES SHALL BE COMMINGLED WITH OTHER ALCOHOLIC OR
NONALCOHOLIC BEVERAGES.
FURTHERMORE, THE SEGREGATED AREA OF THE LICENSED PREMISES AT WHICH
FLAVORED MALT BEVERAGES ARE SOLD SHALL BE LOCATED SO AS TO BE WITHIN THE
VIEW OF THE EMPLOYEES AT SUCH PREMISES' SALES COUNTER OF THE LICENSEE OR
WITHIN THE COVERAGE AREA OF VIDEO SURVEILLANCE EQUIPMENT WHICH IS VIEWED
BY THE EMPLOYEES OF THE LICENSEE DURING ALL PERIODS OF TIME IN WHICH THE
LICENSED PREMISES IS OPEN FOR BUSINESS.
(B) ALL FLAVORED MALT BEVERAGES SOLD BY A RETAIL LICENSEE FOR
OFF-PREMISES CONSUMPTION SHALL BE SOLD IN AN UNREFRIGERATED STATE AND NO
SUCH LICENSEE SHALL SELL ANY SUCH BEVERAGE WHICH HAS BEEN COOLED BELOW
THE ROOM TEMPERATURE OF THE LICENSED PREMISES.
(C) AT THE FRONT OF THE SEGREGATED AREA OF THE LICENSED PREMISES WHERE
FLAVORED MALT BEVERAGES ARE SOLD, THE LICENSEE SHALL CONSPICUOUSLY POST
A SIGN THAT STATES THAT (I) THESE BEVERAGES ARE HIGH ALCOHOL FLAVORED
MALT BEVERAGES THAT CONTAIN MORE THAN EIGHT PER CENTUM ALCOHOL BY
VOLUME, (II) THAT THESE BEVERAGES SHOULD NOT BE CONFUSED WITH OTHER
ALCOHOLIC OR NONALCOHOLIC BEVERAGES WITH LOWER ALCOHOL CONTENT SUCH AS
BEER, AND (III) THE SALE OF SUCH BEVERAGES TO PERSONS UNDER THE AGE OF
TWENTY-ONE YEARS CARRIES WITH IT HEIGHTENED CRIMINAL PENALTIES. THE
STATE LIQUOR AUTHORITY SHALL BE AUTHORIZED TO PROMULGATE RULES AND REGU-
LATIONS PROVIDING FOR THE FORM AND CONTENT OF SUCH NOTICES AND WARNINGS.
S 5. Subdivision 2 of section 107-a of the alcoholic beverage control
law, as added by chapter 479 of the laws of 1940, is amended to read as
follows:
2. Such regulations shall be calculated to prohibit deception of the
consumer; to afford him OR HER adequate information as to quality and
identity; and to achieve national uniformity in this field in so far as
possible. IN ADDITION, FOR THE APPROVAL OF LABELS FOR CONTAINERS OF ANY
FLAVORED MALT BEVERAGE, THE LABEL OR CONTAINER THEREOF MUST:
(A) HAVE A DISCLOSURE THAT IS EITHER PART OF THE LABEL OR AFFIXED TO
THE CONTAINER THAT ADVISES PURCHASERS THAT THIS IS A HIGH ALCOHOL
FLAVORED MALT BEVERAGE (I) OVER CONSUMPTION OF THIS ALCOHOLIC BEVERAGE
MAY CAUSE A SIGNIFICANTLY HIGHER RISK OF ACCIDENTAL PHYSICAL INJURY TO
THE CONSUMER OR OTHERS, OR ALCOHOL POISONING; AND (II) THE OPERATION OF
MOTOR VEHICLES AND OTHER MACHINERY SHOULD BE AVOIDED AFTER CONSUMING
THIS ALCOHOLIC BEVERAGE;
(B) BE DESIGNED SO THAT IT CANNOT BE CONFUSED WITH OTHER BEVERAGES
THAT ARE NOT ALCOHOLIC AND ARE LEGALLY AVAILABLE FOR SALE TO PERSONS
UNDER THE AGE OF TWENTY-ONE YEARS, OR OTHER ALCOHOLIC BEVERAGES WITH A
LOWER ALCOHOL CONTENT SUCH AS BEER. SUCH DESIGN MAY BE ACCOMPLISHED BY
A LABEL DESIGN THAT PLACES A STRIPE OR OTHER INDICATOR TO SHOW THAT THIS
IS A HIGH ALCOHOL FLAVORED MALT BEVERAGE OR BY AFFIXING THE DISCLOSURE
REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION THAT ALSO CLEARLY INDI-
CATES THAT THIS IS A FLAVORED MALT BEVERAGE THAT CONTAINS MORE THAN
EIGHT PER CENTUM ALCOHOL BY VOLUME;
(C) BE DESIGNED SO AS NOT TO BE ATTRACTIVE TO OR ENCOURAGE THE
CONSUMPTION OF SUCH ALCOHOLIC BEVERAGE BY PERSONS UNDER THE AGE OF TWEN-
TY-ONE YEARS. SUCH DESIGN MAY BE ACCOMPLISHED BY A LABEL DESIGN THAT
A. 5922 3
CLEARLY INDICATES THAT THIS IS AN ALCOHOLIC BEVERAGE THAT CANNOT BE
LEGALLY CONSUMED BY PERSONS UNDER THE AGE OF TWENTY-ONE YEARS; AND
(D) PROVIDE NOTICE THAT THE SALE OF FLAVORED MALT BEVERAGES TO PERSONS
UNDER THE AGE OF TWENTY-ONE YEARS CARRIES WITH IT HEIGHTENED CRIMINAL
PENALTIES.
S 6. Clause (ii) of subparagraph 2 of paragraph (c) of subdivision 4
of section 107-a of the alcoholic beverage control law, as amended by
chapter 490 of the laws of 1993, is amended to read as follows:
(ii) the authority does not deny such application within thirty days
after receipt; PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY FLAVORED MALT
BEVERAGE, THE AUTHORITY DOES NOT DENY SUCH APPLICATION WITHIN ONE
HUNDRED TWENTY DAYS AFTER RECEIPT SO THAT THE AUTHORITY HAS A SUFFICIENT
PERIOD OF TIME TO REVIEW SUCH LABEL AND ENSURE THAT THE REQUIREMENTS
ESTABLISHED IN SUCH SUBDIVISION ARE COMPLIED WITH.
S 7. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction to
be invalid and after exhaustion of all further judicial review, the
judgment shall not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the clause, sentence, para-
graph, section or part of this act directly involved in the controversy
in which the judgment shall have been rendered.
S 8. This act shall take effect on the one hundred eightieth day after
it shall have become a law. Effective immediately, the state liquor
authority is authorized to add, amend and/or repeal any rules and regu-
lations necessary to implement the provisions of this act on its effec-
tive date.