The Alcopops Adventure Continues in New York

Just when you thought the caffeinated alcoholic beverage saga was finally over, New York state senator Jeffrey Klein is keeping the saga alive. As a response to the ban on caffeinated alcoholic beverages that spread throughout the nation toward the end of 2010, the largest producer of such beverages, Phusion Projects, eliminated caffeine, guarana and taurine from its beverages. Senator Klein (D-Bronx/Westchester), chairman of the New York Senate Alcohol and Drug Abuse Committee, however, believes the products are still dangerous and being accessed and abused by minors. As a result, at the end of March he introduced a plan of action to decrease minors’ access to the beverages by creating a new defined term within the New York alcoholic beverage code, “Flavored Malt Beverage,” and requiring that such products falling under the new definition are only sold in New York liquor stores as opposed to convenience stores. Many phrases have been used to describe these beverages, from Progressive Adult Beverages (PABs), Flavored Alcoholic Beverages (FABs), Malternatives, Ready to Drinks (RTDs), and the catchy Alcopops. But if the new bill, S4221-2011 becomes law, it appears that FMB will become the beverages’ official title in New York. The proposed definition of FMBs set forth in S4221-2011 is:

“’Flavored Malt Beverage’ means and includes any alcoholic beverage of any name or description that is manufactured from malt, wholly or in part, or from any substitute therefore including, but not limited to, liquor, spirit or wine; and containing more than six per centum alcohol by volume and more than one per centum sugar by volume which is manufactured with the addition of flavorings or other ingredients including, but not limited to, fruit, fruit juice or fruit flavor, or herbs, nuts or spices (including, but not limited to, chocolate, licorice or vanilla, or stimulants (including, but not limited to caffeine, guarana, ginsing (sp), taurine or wormwood oil). The authority may, pursuant to subdivision fifteen of section seventeen of this chapter, further defined those alcoholic beverages that shall be included within such term. Provided that, Flavored Malt Beverages shall not be deemed to be beer, cider or a wine product.”

Senator Klein also introduced S3889-2011 to ban the sale of caffeinated alcoholic beverages, which a convenience store in Klein’s district was apparently still selling despite Phusion Project’s statement that is was no longer making the product and the agreement between New York’s largest distributors and the State Liquor Authority to stop selling the beverages to retailers. The ban in S3889-2011 also comes by way of creating a new defined term within the New York alcoholic beverage code: Caffeinated or Stimulant-Enhanced Alcoholic Beverage. The term would include alcoholic beverages with more than 5% but not more than 15% alcohol by volume that also has more than six milligrams per ounce of caffeine or other stimulant that has an effect equivalent to that of caffeine. The maximum 15% alcohol by volume in the definition is designed to exempt coffee-based liquors from the definition. The bill’s summary explains the logic for this distinction:

“The differentiation between these coffee based products and CABs is that caffeine is naturally occurring in coffee and herbs such as guarana, ginseng, taurine or wormwood oil are not added. Further, these products are sold exclusively in liquor stores, which can only be patronized by adults. In addition, coffee-based alcoholic beverages tend to be mixed with milk or cream, which makes them heavier and less vulnerable for over consumption. However, CABs tend to be lighter in body, sweeter to mask its alcohol content, and hence, are more easily subject to over consumption and abuse.”

We will continue to follow the progress of the two New York bills and are interested to see if additional states follow suit.

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This entry was posted on April 12, 2011.