Bill S2842-2011

Establishes a class E felony for the sale to a minor of an alcoholic beverage containing a stimulant when such sale is made by a licensee of the state liquor authority

Establishes a class E felony for the sale to a minor of an alcoholic beverage containing a stimulant when such sale is made by a licensee of the state liquor authority.



  • Jun 22, 2012: referred to environmental conservation
  • Jun 21, 2012: PASSED SENATE
  • Jun 21, 2012: ORDERED TO THIRD READING CAL.1525
  • Jun 24, 2011: COMMITTED TO RULES
  • Mar 15, 2011: 2ND REPORT CAL.
  • Mar 14, 2011: 1ST REPORT CAL.221




VOTE: COMMITTEE VOTE: - Alcoholism and Drug Abuse - Mar 14, 2011
Ayes (6): Bonacic, Hannon, McDonald, Klein, Huntley, Breslin
VOTE: COMMITTEE VOTE: - Alcoholism and Drug Abuse - May 21, 2012
Ayes (5): Bonacic, Hannon, McDonald, Klein, Breslin
Excused (1): Huntley
VOTE: COMMITTEE VOTE: - Rules - Jun 21, 2012
Ayes (20): Skelos, Alesi, Farley, Hannon, Johnson, Larkin, LaValle, Libous, Marcellino, Maziarz, Nozzolio, Saland, Sampson, Breslin, Dilan, Hassell-Thompson, Krueger, Montgomery, Smith, Stewart-Cousins
Ayes W/R (2): Seward, Duane
Nays (2): Parker, Perkins
Excused (1): Fuschillo



TITLE OF BILL: An act to amend the alcoholic beverage control law, in relation to providing enhanced penalties for licensees who sell certain alcoholic beverages to persons under the age of twenty-one years

PURPOSE: The purpose of this bill is to increase the criminal penalties for those who sell caffeinated alcoholic Beverages (CABS) to persons under the age of 21. CABs are defined, under this bill, as a beverage that has a combination of two percent alcohol by volume and 5 milligrams of caffeine per ounce or other stimulants that have a similar affect. These caffeinated alcoholic beverages (CABs) are now being actively marketed to and increasingly used by those who are between the ages of 14 to 25.

SUMMARY OF PROVISIONS: Section 1: Adds a new ABC Law section 65(7) to add to the list of prohibited sales of alcohol, the sale of CABs to persons under the age of 21. Under current law, any licensee, or agent of a licensee, (i.e., sales made in convenience stores, restaurants or bars) who sells, delivers or gives away any alcoholic beverage to a person under the age of 21 is guilty of a Class A misdemeanor. Under this bill, the criminal penalty for such a transaction to sell CABs would be increased from a class A misdemeanor to a class E felony. A class A misdemeanor is punishable by a fine of up to $ 1,000, one year in prison or both. A Class E Felony is punishable by a fine of up to $ 5,000, and indeterminate sentence of between 1 and 3 years in prison, or both.

JUSTIFICATION: Energy drinks are designed to make individuals "feel" more aware and awake. To do this, such drinks contain stimulants such as caffeine, guarana, or ginseng, 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 14 - 35 years old. One of the leading brands in this market, Red Bull, was created in Austria and introduced into the U.s. market in 1997. Red Bull and other energy drinks, have become popular mixers at bars and night clubs, with the Vodka Red Bull being one of the more popular drinks that mix alcohol and caffeine.

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 malt based beverages, and therefore, can be sold in the same places as beer and malt liquor, i.e., supermarkets, convenience stores, and bodegas. These sales points are also the same place that teenagers can hang around at and purchase soda and snacks. 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, particularly among underage

drinkers, which combines 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 use of CABs by persons under the age of 21, include:

1) Individuals, particularly those under the age of 3D, who combine alcohol with stimulants engage in riskier drinking behaviors and drink a greater amount 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 those who are under 21 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 - 21. 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 21 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 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. Energy drink maker Rockstar, introduced an alcoholic version called Rockstar 21 and the extreme similarity in labeling of the company's alcoholic and non-alcoholic energy drinks lead to an outcry which forced Rockstar 21 from the market. Other 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.

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 levels, and 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 increase criminal penalties for those who sell, deliver or give such dangerous alcoholic beverages to persons under the age of 21. The two per centum of alcohol by volume standard contained in this bill is slightly less than that which is contained in beer which is generally between 3.2 % to 5% alcohol content by volume. The Five milligrams per ounce of caffeine is above the amount of caffeine found in most sodas (i.e., 2 to 4.9 mg of caffeine), but is less than that which is found in coffee or tea (i.e., 7 to 20 mg of caffeine).

While the CAB thresholds contained in this bill for alcohol and caffeine may sound low, the combination of these two ingredients can be addicting and sometimes can have a lethal affect, particularly when consumed by underage drinkers. Indeed, most CABs have an average alcohol content, by volume of between 5 percent and 12 percent. These high level alcohol beverages are combined with caffeine levels well in excess of 10 mgjoz to 50 mgjoz or have other stimulants such as guarana, ginseng, or tarine added. This combination makes these beverages highly unsuitable for consumption by persons under the age of 21. Further, these CABs are formulated to taste sweet with fruit flavor overtones that mask the taste of alcohol present in these drinks specifically to target underage drinkers.

In sum, they are manufactured specifically with the idea of gearing their sale to persons under the age of 21. These CABs are also packaged to look like other energy drinks which are now already being consumed by underage drinkers. An while it may be an anomaly to have a heightened level of punishment for selling CABs to persons under the age of 21 when compared to selling spirits or wine, CABs are much more attractive to minors, hence the need to a heightened penalty for the sale of these beverages to those under the age of 21.

For all of the reasons above, New York must change its public policy to dampen the sale and consumption of these dangerous beverages to persons under the age of 21.

LEGISLATIVE HISTORY: 2010 - S.8508 - Referred to Rules



EFFECTIVE DATE: This act shall take effect 30 days after it shall have become law.


STATE OF NEW YORK ________________________________________________________________________ 2842 2011-2012 Regular Sessions IN SENATE February 2, 2011 ___________
Introduced by Sens. KLEIN, VALESKY -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Government Operations AN ACT to amend the alcoholic beverage control law, in relation to providing enhanced penalties for licensees who sell certain alcoholic beverages to persons under the age of twenty-one years THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 65 of the alcoholic beverage control law is amended by adding a new subdivision 3-a read as follows: 3-A. ANY LICENSEE, OR ITS AGENT OR EMPLOYEE, WHO SELLS, DELIVERS OR GIVES AWAY, OR CAUSES, PERMITS OR PROCURES TO BE SOLD, DELIVERED OR GIVEN AWAY TO ANY PERSON, ACTUALLY OR APPARENTLY, UNDER THE AGE OF TWEN- TY-ONE YEARS, ANY ALCOHOLIC BEVERAGE THAT CONTAINS MORE THAN TWO PER CENTUM OF ALCOHOL BY VOLUME, IN COMBINATION WITH MORE THAN FIVE MILLI- GRAMS PER OUNCE OF CAFFEINE OR ANY OTHER STIMULANT INCLUDING, BUT NOT LIMITED TO, GUARANA, GINSENG OR TAURINE THAT HAS AN EQUIVALENT EFFECT AS SUCH QUANTITY OF CAFFEINE, SHALL BE GUILTY OF A CLASS E FELONY AS DEFINED IN THE PENAL LAW. S 2. This act shall take effect on the thirtieth day after it shall have become a law.


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