The Washington State Liquor Control Board (WSLCB) has passed a resolution to temporarily “prevent the further sale and distribution of malt beverage products containing caffeine and other stimulants.” Washington Governor Christine Gregoire (D) joined WSLCB in announcing the measure, citing reports that nine Central Washington University students “became dangerously ill” after consuming alcoholic energy drinks (AEDs).

“Quite simply, these drinks are trouble. They contain up to 12 percent alcohol
– more than twice the amount found in most beer,” Gregoire was quoted
as saying. “Added to that are large amounts of caffeine, which can mask the
effects of alcohol. By taking these drinks off the shelves we are saying ‘no’ to
irresponsible drinking and taking steps to prevent incidents like the one that
made these college students so ill.”

The emergency ban apparently covers all AEDs “that combine beer,
strong beer, or malt liquor with caffeine, guarana, taurine, or other similar
substances.” According to WSLCB, these products “may not be imported into
the state, produced, manufactured, distributed, sold or offered for sale by a
licensed retailer in Washington after November 17, 2010.”

The temporary measure expires in 120 days, “during which time the WSLCB
will seek to make the rules permanent” through regular channels that permit
public and stakeholder comment. The board will seek to adopt the permanent
rules on March 2, 2011, with the ban taking effect 31 days later. Additional
details about similar measures taken in Michigan and Pennsylvania appear
in Issue 371 of this Update. See WSLCB “Q and A” and WSLCB Press Release,
November 10, 2010.

Meanwhile, U.S. Senator Charles Schumer (D-N.Y.) has called on the New York
State Liquor Authority (NYSLA) to take similar actions, noting that the Food
and Drug Administration’s (FDA’s) failure to approve AEDs or determine their
“generally recognized as safe” status has given NYSLA leeway “to implement
a state ban on their sale.” In a November 10, 2010, letter to NYSLA, Schumer
claims that AEDs “raise unique and disturbing safety concerns, especially for
younger drinkers.” While he expresses hope that “the FDA will soon issue a
decision banning these harmful and destructive drinks,” Schumer nevertheless
urges an “immediate” statewide ban. See Schumer Press Release, November
10, 2010.

About The Author


For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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