S T A T E O F N E W Y O R K
________________________________________________________________________
2888--A
Cal. No. 251
2011-2012 Regular Sessions
I N A S S E M B L Y
January 20, 2011
___________
Introduced by M. of A. MAGEE -- Multi-Sponsored by -- M. of A. GALEF --
read once and referred to the Committee on Agriculture -- reported
from committee, advanced to a third reading, amended and ordered
reprinted, retaining its place on the order of third reading
AN ACT to amend the agriculture and markets law, the public health law
and the alcoholic beverage control law, in relation to frozen desserts
made with wine
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivisions 14 and 15 of section 200 of the agriculture
2 and markets law, as added by chapter 189 of the laws of 2008, the open-
3 ing paragraph of subparagraph (iii) of paragraph (a) of subdivision 15
4 as amended by chapter 341 of the laws of 2009, is amended to read as
5 follows:
6 14. If it is ice cream OR OTHER FROZEN DESSERTS made with wine bearing
7 or containing more than five percent of alcohol by volume.
8 15. With respect to the manufacture and sale of ice cream OR OTHER
9 FROZEN DESSERTS made with wine bearing or containing more than one-half
10 of one percent, but not more than five percent of alcohol by volume:
11 (a) No person shall sell at retail packages of ice cream OR OTHER
12 FROZEN DESSERTS made with wine for consumption off the premises where
13 sold unless:
14 (i) each package is a sealed package containing at least one pint, as
15 received from the manufacturer or distributor;
16 (ii) each sealed package containing at least one pint, as received
17 from the manufacturer or distributor, in a format to be established or
18 approved by the commissioner, prominently bears the following state-
19 ments:
20 (A) The sale of this product to individuals under the age of twenty-
21 one years is prohibited.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03566-02-1
A. 2888--A 2
1 (B) This product is made with wine and contains alcohol up to five
2 percent by volume.
3 (C) Notice. This product contains alcohol used as a flavoring and, as
4 with any product that contains alcohol:
5 (1) women should not consume alcohol during pregnancy because of the
6 risk of birth defects, and
7 (2) consumption of alcohol impairs your ability to drive a car or
8 operate machinery, and may cause health problems.
9 (iii) the following advisory, on a sign or poster not less than seven
10 inches by five inches, in a format to be established or approved by the
11 commissioner, is displayed prominently at each location where packages
12 of [wine] ice cream OR OTHER FROZEN DESSERTS MADE WITH WINE are made
13 available to the public:
14 "THIS AREA CONTAINS WINE ICE CREAM OR OTHER FROZEN DESSERTS
15 MADE WITH WINE
16 The sale of WINE ICE CREAM OR OTHER FROZEN DESSERTS MADE WITH WINE to
17 individuals under the age of twenty-one years is prohibited.
18 WINE ICE CREAM [contains] OR OTHER FROZEN DESSERTS MADE WITH WINE
19 CONTAIN alcohol up to five percent by volume.
20 NOTICE: WINE ICE CREAM [contains] OR OTHER FROZEN DESSERTS MADE WITH
21 WINE CONTAIN alcohol used as a flavoring and, as with any product that
22 contains alcohol:
23 (1) women should not consume alcohol during pregnancy because of the
24 risk of birth defects, and
25 (2) consumption of alcohol impairs your ability to drive a car or
26 operate machinery, and may cause health problems.
27 IT IS A VIOLATION PUNISHABLE UNDER LAW FOR ANY PERSON UNDER THE AGE OF
28 TWENTY-ONE TO PRESENT ANY WRITTEN EVIDENCE OF AGE WHICH IS FALSE, FRAU-
29 DULENT OR NOT ACTUALLY HIS OWN FOR THE PURPOSE OF ATTEMPTING TO PURCHASE
30 WINE ICE CREAM OR OTHER FROZEN DESSERTS MADE WITH WINE."
31 (b) No manufacturer and/or distributor of ice cream OR OTHER FROZEN
32 DESSERTS made with wine shall sell such product:
33 (i) to a person intending to sell at retail individual servings of
34 [wine] ice cream OR OTHER FROZEN DESSERTS MADE WITH WINE, unless, with
35 each shipment, such manufacturer and/or distributor provides:
36 (A) a written notice that individual servings of wine ice cream OR
37 OTHER FROZEN DESSERTS MADE WITH WINE may be sold at retail only where
38 the retailer complies with all of the requirements set forth in para-
39 graph (a) of this subdivision, and
40 (B) a written copy of such requirements; and
41 (ii) to a person intending to sell at retail packages of wine ice
42 cream OR OTHER FROZEN DESSERTS MADE WITH WINE for consumption off the
43 premises, unless, with each shipment, such manufacturer and/or distribu-
44 tor provides:
45 (A) a written notice that packages of wine ice cream OR OTHER FROZEN
46 DESSERTS MADE WITH WINE may be sold at retail only where the retailer
47 complies with all of the requirements set forth in paragraph (a) of this
48 subdivision, and
49 (B) a written copy of such requirements.
50 S 2. Section 1352-c of the public health law, as added by chapter 189
51 of the laws of 2008, is amended to read as follows:
52 S 1352-c. Ice cream OR OTHER FROZEN DESSERTS made with wine. No person
53 shall sell at retail individual servings of ice cream OR OTHER FROZEN
54 DESSERTS made with wine bearing or containing more than one-half of one
55 percent but not more than five percent of alcohol by volume, unless the
56 following statements are prominently displayed on the printed menu (or,
A. 2888--A 3
1 if no printed menus are used, on the menu board or sign setting forth
2 the bill of fare) immediately adjacent to the listing of the item or
3 items of wine ice cream OR OTHER FROZEN DESSERTS being offered:
4 1. The sale of wine ice cream OR OTHER FROZEN DESSERTS to individuals
5 under the age of twenty-one is prohibited.
6 2. Wine ice cream [contains] OR OTHER FROZEN DESSERTS CONTAIN alcohol
7 up to five percent by volume.
8 3. Notice: Wine ice cream [contains] OR OTHER FROZEN DESSERTS CONTAIN
9 alcohol used as a flavoring and, as with any product that contains alco-
10 hol:
11 (a) women should not consume alcohol during pregnancy because of the
12 risk of birth defects, and
13 (b) consumption of alcohol impairs your ability to drive a car or
14 operate machinery, and may cause health problems.
15 S 3. Subdivision 1 of section 3 of the alcoholic beverage control
16 law, as amended by chapter 189 of the laws of 2008, is amended to read
17 as follows:
18 1. "Alcoholic beverage" or "beverage" mean and include alcohol, spir-
19 its, liquor, wine, beer, cider and every liquid or solid, patented or
20 not, containing alcohol, spirits, wine or beer and capable of being
21 consumed by a human being, and any warehouse receipt, certificate,
22 contract or other document pertaining thereto; except that confectionery
23 containing alcohol as provided by subdivision twelve of section two
24 hundred of the agriculture and markets law and ice cream AND OTHER
25 FROZEN DESSERTS made with wine as provided in subdivision fifteen of
26 section two hundred of the agriculture and markets law shall not be
27 regulated as an "alcoholic beverage" or "beverage" within the meaning of
28 this section where the sale, delivery or giving away is to a person aged
29 twenty-one years or older. The sale, delivery or giving away of ice
30 cream made with wine to a person under the age of twenty-one years may
31 be prosecuted administratively and/or criminally in accordance with the
32 provisions of this chapter.
33 S 4. This act shall take effect on the thirtieth day after it shall
34 have become a law.