***This was originally posted on BreweryLaw.com.***
Earlier today, the Washington State Liquor Control Board imposed a ban on certain alcoholic beverages that contain caffeine, guarana, taurine, or other similar substances. The language of the ban regulation can be found on the LCB’s website. The ban is a direct response to a number of dangerous alcohol-related scares to college students who had been consuming Four Loko, an alcoholic energy drink.
I originally reported that the ban seemed to broad enough to include a prohibition on coffee beers – but it appears that is not the LCB’s intention. Breathe easy, beer lovers.
This law is being implemented under the State’s emergency powers, which provide for expedited regulatory powers in times of need. The law is temporary and will expire in March 2011. Thus, the LCB will be prompted to begin the regular law-making procedure to put together a final, more clear, regulation.
Here is the current language that is being put in place:
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.
Many will say that the language is a bit broad, referring to products that “combine beer….with caffeine…which are commonly referred to as ‘alcohol energy drinks’.” First of all many products, including coffee, contain caffeine. Secondly, “alcohol energy drinks’ is an undefined term that could bear a myriad of meanings.
Its difficult to enact a regulation that specifically applies to a particular product. Remember, the LCB doesn’t simply want Four Loko to stop referring to itself as an “energy drink” in order to avoid the law. So, the LCB will have to use discretion in how this law is enforced until a more clear final regulation is put in place.
The LCB will rely on the purpose of this law in determining its enforcement. The purpose was to prevent that production and sale of “energy drinks” that are pre-mixed with alcohol. In fact, the LCB’s fact sheet specifically states that the ban does not implicate the mixing of liquor and energy drinks (i.e. Red Bull & Vodka), stating that “the ban applies only to pre-mixed, malt-based products.”
Coffee beers are pre-mixed beverages containing added caffeine. So, they fall along the lines of this regulation. Alas, the LCB does not intend to go after them, as they are not commonly referred to as “alcohol energy drinks.” It requires a bit of interpretation, but it will work for most in the beer industry.
The LCB informed me that coffee beers will not be implicated because brewers add coffee, not caffeine, and for the sole purpose of flavor. The difference is that Four Loko, and beverages like it, add caffeine, and for the sole purpose of “energy.”
A little interpretation in enforcement should keep this from immediately affecting the brewing industry. However, a more advanced law-crafting procedure looms and the State could decide to include coffee beer. In 2009, the FDA decided to make a run at pulling these beers off the market.
The combination of recent alcohol poisoning and the difficulty of regulating a small sample of a particular type of product (“energy” drinks v. caffeine-added drinks) might require the LCB to enact a more sweeping regulation. Thus, it may behoove the Washington Brewers Guild and other brewing groups to get involved in the new rule-making procedure.
For now, Mocha Death is safe.
***This post was originally posted on BreweryLaw.com, perhaps the nation’s only blog devoted to beer law! The blog is published by Reiser Legal, LLC, a Seattle, Washington law office. Reiser Legal’s Douglas Reiser is our regular legal columnist.***
Recently, the Liquor Control Board (LCB) has been vocal about its disdain for the proposed Initiative. The Washington Wine Institute hosted Washington Liquor Control Board Deputy Director, Rick Garza, at a panel meeting in Woodinville, last month. The purpose of the panel was to show the public why most of the local beverage industry opposes the Initiative. The Washington Brewers Guild was also present, echoing the Wine Institute’s call. (You can listen to Garza’s presentation by following this link over at SoundPolitics.com)
Apparently, one concerned citizen is upset about the LCB’s public presence. A local Seattle man (and writer for SoundPolitics.com) has filed a Complaint with the State of Washington Executive Ethics Board against Garza, alleging that the LCB executive is illegally using public resources and misleading the public with false information.
If you are interested in the Complaint, you can find a brief summary by clicking on this link, and you can read the entire Complaint by following this link. The LCB’s position has been laid out in a series of slides that can be read by following this link.
This blog takes no position with regard to the Complaint. Furthermore, we have no supporting information which makes us believe that the LCB is misleading the public.
It is, however, apparent that the LCB is openly involved in the “Vote No” movement. Recent materials illustrate that they believe the passing of Initiative 1100 will cost millions, necessitating a dip into the State’s general fund to meet LCB budget requirements.
Of course, the war of words will only gain steam as we approach November. Feel free to leave comments below if you have something to add to the discussion.