ALCOPOPS, MALTERNATIVES, AND FLAVORED COOLERS
The ABC’s of Kiddy Alcohol
By Ralph Barat Saltsman
with Stephen Warren Solomon and Stephen Allen Jamieson
In the midst of summer vacation as temperatures soar,
youngsters’ thoughts turn to beaches, camping, the mall, and
alcopops, malternatives and flavored coolers. Why not, beaches are
cool, camp sites are inviting, the mall is open and flavored
coolers are enticing. Intentionally enticing? Many think so.
It’s obvious that such products as Margarita or Melon or
Strawberry Flavored Malt Coolers, Smirnoff Ice, Captain Morgan
Gold, “Doc’s” Hard Lemon, Bacardi Silver, Skyy Blue,
Stolichnaya Citrona and Mike’s Hard Lemonade all would be
attractive to the under 21 years alcohol drinking community. Watch
dog groups and public advocates are screaming about children’s
alcohol drinks. The industry says that’s not who it’s after.
The government says; well, the government says, as with most
issues: Let’s investigate this by committee.
Stacey Stein, then a journalism student at Ryerson Polytechnic
University, Toronto, writing for Young People’s Press (1998),
noted that flavored coolers were “especially appealing to young
people since the alcohol is masked by the beverage’s sweet
taste.”
According to the August 13, 1997 edition of The Christian
Science Monitor (Alexander MacLeod), a (near) London housewife
brought home “Power Ranger Freeze Drinks” for the kids, later
noticed those youngsters’ manifesting the effects of alcohol,
and only still later found the product contained 4.5% alcohol. The
CSM article recognized: “As in Britain, labeling in the US seems
pitched at youngsters, with cartoon characters used extensively.
Cosmic Kaze (20 percent alcohol) features a meteorite with sun
glasses. Butter Ball (15 percent) has a graphic that looks like an
overweight Elvis singing.”
The breweries and distilleries deny they market to teens, but
the advertising speaks for itself as does the packaging. The
consuming public is capable of drawing its own conclusions. Some
industry executives have expressed a belief that the products draw
in a new class of consumer, that is, folks who don’t like the
taste of alcoholic beverages. At least not yet. The question is:
does that entry level group include kids learning to acquire that
taste a few years before it’s legal to do so? There are those
critics who say this is training wheel alcohol. You know, like
your first bicycle.
While there has been discussion of these issues at the top
levels of the Department of Alcoholic Beverage Control, according
to informed sources within the Department, the ABC perceives its
responsibility as simply following the Federal Government’s
lead. But Alcohol Tobacco and Firearms appears to see its role in
regulating flavored malt beverages as a labeling issue. In ATF
Ruling 2002-2 (April 8, 2002), the ATF introduced the issue by
stating:
Sales of these newer types of flavored malt
beverages have increased dramatically within the last year. As a
result of these sales increases and widespread marketing
campaigns, the media has given these products wide exposure.
Another fact drawing media attention to these products is the
impression given that these flavored malt beverages are made
with distilled spirits or contain distilled spirits.
ATF believes the association drawn between
distilled spirits and malt beverages through the use of
well-known distilled spirits brand names and terms on labels of
flavored malt beverages causes confusion for consumers, the
media, and State regulatory and taxing organizations. ATF
believes this practice is confusing and leads consumers to
believe distilled spirits are present in these flavored malt
beverages.
That same informed source within the Department pointed out
that 90% of the alcoholic content of these products is derived
from distilled spirits. So who is confused if the products’
alcohol content is 90% derived from distilled spirits, but the
Feds are concerned that the public is being misled by the
distilled spirits style of branding? North of California, the
Oregon Liquor Control Commission published a notification that
effective January 1, 2004 flavored malt beverages may be
restricted to sales in premises licensed to sell distilled
spirits. In Oregon that would land the products in liquor stores
controlled by the State of Oregon. Meanwhile, the Federal Trade
Commission is drafting a report to Congress on the effect of
advertising of flavored malternatives on underage consumers. The
Department of the Treasury, Alcohol and Tobacco Tax and Trade
Bureau, is mulling over a rule change responding to the labeling
issue. Treasury has invited public and industry comment, and the
industry has asked for more time to submit its response.
Once the Federal Government assures the products are properly
labeled as to contents and are sold accordingly, and the
California ABC follows the Fed’s lead, is there anyone out there
watching for whom the products are marketed and to whom the
brightly packaged bottles are sold? If these products are sold as
distilled spirits, will they be removed from Type 20 premises and
moved over to Type 21 premises? Does that change the targeted
consumer? Does that solve the related “sales to minor”
problems?
Just when retail licensees thought their job of policing
against sales to minors was tough enough, just when licensees face
revocation of their licenses for a third sales to a minor case
within 36 months of the first such violation, just when minor
decoys are frequenting all manner of licensed premises on a
regular basis throughout the state, along comes a product line so
obviously targeting the underage crowd, that parents can and have
(ask that London housewife) mistakenly brought home flavored
coolers not knowing they were giving their teenagers something
that was around 5% alcohol. Certainly accurate labeling should be
mandatory. In Ruling 2002-2, the ATF requires:
Pending the completion of rulemaking, ATF will
continue to approve statements of process and applications for
certificates of label approval meeting these criteria.
Statements of process submitted under Section 25.67 for flavored
malt beverages that include the use of any alcohol flavoring
materials shall explicitly indicate:
1. The volume and alcohol content of the malt
beverage base.
2. The maximum volumes of such alcohol flavoring materials
proposed to be used.
3. The alcohol strength of such flavoring materials.
4. The overall alcohol contribution to the finished product
provided by the addition of any alcohol flavoring materials.
5. The final volume and alcohol content of the finished product.
Our review of products on store shelves indicates the labels
comply with these interim Federal requirements. Those numbers are
printed there, hidden in plain sight amongst the catchy kids’
phrases and cartoon characters. To all of the accusations leveled
by consumer groups, such as Center for Science in the Public
Interest (based in Washington DC), there are defenses proffered by
the distilleries and breweries. There are even counter accusations
against the bias of the public interest groups and their perceived
general anti-alcohol agenda. The end of the conversation always
arrives in the same place. How can one prove an intent to target
kids? Any cute cartoon character that would sell a malternative to
a kid could also sell the product to a 22 year old. Any televised
sports event sponsored by a dancing pirate selling a flavored
bottle of stuff originally derived from rum could be watched by
high school seniors or college seniors. Unfortunately, the product
might be purchased by either. That’s the problem.
At this point precious little has been accomplished to guard
against targeting kids as consumers of these products. Any
retailer could refuse to shelve the items. Would this be fair to
that retailer since the store across the street has those products
for display and sale? Would it be fair in light of the sincere
protestations of manufacturers that they were after the new, young
but over 21 crowd?
Will flavored beer commercial tapes end up on studio floors
together with Joe Camel and cigarette ads? No alcohol advertising
on television? Don’t bet on it. Right now the federal government
defines an issue that it thinks can be resolved by more accurate
labeling. The problem really is in the dichotomy of how government
regulates retailers on the one hand and manufacturers on the
other. If government watches flavored cooler manufacturers from a
distance and California’s retailers under a microscope, somehow
that doesn’t seem right. For government to be respected, it must
be even-handed. Meanwhile, the federal government is crafting rule
changes that may change product labeling. Alcopops may vacate the
shelves of convenience store staffed by employees of international
conglomerates and move over to the corner liquor store. And is the
State of California happy to stand back and watch? Problem solved?
It depends on who you ask. Will kids continue to look at
malternatives as the teenage introduction into alcoholic
beverages? Will they go into your store to check out the product
line? Will local law enforcement be there to watch the minors take
the bait? That’s a certainty.
Now in the middle of summer, high schoolers are not thinking
about a citation that could affect their ability to maintain a
driver’s license. Not at all; teenagers’ thoughts turn to
beaches and the mall, to Smirnoff Ice, Bartles and Jaymes, fast
food and 31 Flavors. You know, kid stuff.
Solomon, Saltsman & Jamieson are
attorneys practicing in the areas of ABC law, ABC Appeals Board
cases, and all related Land Use Matters such as City and County
Conditional Use Permits, Variances, Police and Fire permits,
Entertainment law, and Gambling Law; as well as Business and
Personal Injury litigation. Solomon, Saltsman & Jamieson can
be reached at 800 405 4222."
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