***UPDATE: It appears that coffee beers will be safe. The LCB says that the motivation is to go after products with added caffeine and marketed as energy drinks. This does not include products that add coffee, or other things that have caffeine, for flavor.
Check out this follow up post for more information on how the new temporary law works. A permanent regulation will be up for public comment soon.****
***This post was originally posted on BreweryLaw.com, a blog written by Reiser Legal LLC. Douglas Reiser is our regular legal commentator.***
This may be huge news, particularly for those of us who love our breakfast stouts. Washington has just banned alcoholic beverages that contain caffeine and/or several other “energy” additives.
This is a big punch to many brewers in the State of Washington – and others who sell who beer here. There is a widening market for the sale of coffee-infused beer. Many brewers, such as Ellensburg’s Iron Horse Brewing, sell a coffee-based beer as part of their regular lineup.
I had a brief conversation with the Liquor Control Board, who seemed to infer that as long as beer and caffeine are combined in the same bottle/container – it cannot be sold or produced here in Washington.
Attached below is the initial press release that is going out in the next few hours. Give it a thorough read.
If you read the code provision that will be implemented, it does call question as to whether or not the ban will include the beers that are currently on the market. The code does mention that it bans beer that contains caffeine. But the code refers to those which “are commonly referred to as “alcohol energy drinks.” The structure of the provision might refer to the ingredients (meaning that it seeks to ban beverages with specific ingredients) as opposed to the beverage itself (meaning that it seeks to ban beverages with a common title). If it means the latter, coffee beers might be safe.
But alas, the provision is vague enough to spell an end to coffee stouts and other caffeinated beers out there on the market. We will certainly be following enforcement, closely.
Notice of Emergency Rule Banning Alcohol Energy Drinks in the State of Washington
On November 10, 2010, the Washington State Liquor Control Board adopted an emergency rule prohibiting the sale, importation, and distribution of alcohol energy drinks in the State of Washington after November 17, 2010.
The emergency rule expires automatically after 120 days (March 10, 20110). The board has also filed a pre-proposal statement of inquiry (CR 101) with the Code Reviser’s Office to begin permanent rulemaking.
If you have any questions, please contact Karen McCall, Rules Coordinator, at (360) 664-1631 or e-mail at firstname.lastname@example.org.
What are the agency’s reasons for adopting this emergency rule?
The mission of the Washington State Liquor Control Board (WSLCB) includes ensuring the responsible sale, and preventing the misuse of, alcohol. As part of this mission, the Board endeavors to ensure that products which pose a threat to public safety are handled appropriately. The board is particularly concerned about alcohol energy drinks, which are marketed in a way that implies the consumption of these beverages has a stimulating or energizing effect. Alcohol energy drinks have become increasingly popular, especially among underage drinkers. These beverages promote a situation where people may become inebriated, but cannot judge their own condition, which is contrary to human health and public safety. This is contrary to the mission of the WSLCB.
WAC 314-20-022 Alcohol energy drinks. No product that combines beer, strong beer, or malt liquor with caffeine, guarana, taurine, or other similar substances which are commonly referred to as “alcohol energy drinks” may be imported into the state, produced, manufactured, distributed, sold or offered for sale by a licensed retailer in the state of Washington after November 17, 2010.