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

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.