Oregon Temporarily Bans "Alcopop"
Following actions by the FDA, the TTB, as well as several states, the Oregon Liquor Control Commission (OLCC) recently announced a temporary ban on the sale of caffeinated alcoholic beverages within the state's borders. The action, taken during a November 20th special meeting on the issue, will last until May 18, 2011, during which time the OLCC will move to make the ban permanent. The ban requires sales of "Alcopop" cease immediately and all merchandise be removed from store shelves. According to the OLCC press release, failure to comply would constitute a "category two" violation, punishment being a mandatory 30-day suspension of the offenders liquor license.
The move was applauded by Oregon Gov. Ted Kulongoski, who stated he "...applaud[ed] the OLCC for taking the very necessary step of halting access to these dangerous beverages."
California High-Speed Rail: Vineyards in California's Central Valley Could be Impacted by its Tracks
A legal update from our colleague Stacy Gillespie.
The California High-Speed Rail Authority (“Authority”) will announce at its December 2, 2010 meeting which segment of the 800-mile HSR will be the first to be built. At its November 4, 2010 meeting, the Authority’s Chief Executive Officer, Roelof van Ark, presented the Authority’s Board members with revised corridor selection criteria for full Board discussion and direction. The Federal Railroad Administration recently sent a letter to the Authority stating that the Stimulus money must all be allocated to the Central Valley. 
Thus, contrary to earlier projections, the two routes in the most populated regions—San Francisco to San Jose, and Los Angeles to Anaheim—are now out of the running. The route that will be the early winner of $4.3 billion in federal and state funds and constructed first will be either Merced to Fresno (60 miles in length), or Fresno to Bakersfield (113 miles in length).
The Authority’s December 2nd determination will be of utmost importance to holders of large property rights, such as wineries, vineyards, and other agricultural interests. All segments of the HSR are undergoing various stages of the environmental review process as required by federal and state environmental laws. During that review, the preferred routes will be determined and alternative routes will be evaluated. Now is the time to get involved and submit comments to the Authority regarding the contemplated routes.
The cities located in the Central Valley corridors include:
1. Sacramento to Merced: Sacramento, Elk Grove, Galt, Lodi, Stockton, Manteca, Ripon, Modesto, Turlock, Livingston, Atwater, andMerced.
2. Merced to Fresno: Merced, Chowchilla, Madera, Clovis, and Fresno.
3. Fresno to Bakersfield: Fresno, Parlier, Reedley, Dinuba, Selma, Visalia, Tulare, Exeter, Porterville, Corcoran, Delano, Wasco, Shafter,and Bakersfield.
Insofar as a particular route for each corridor is determined, inherent in the Authority’s construction of the HSR is its power to acquire rights-of-way of private land—which is certain to require property owners to get quickly up to speed on eminent domain (condemnation) law.
A group of attorneys in our Sacramento office is closely following this issue and specialize in environmental law and eminent domain. Please subscribe if you would like to receive regular email alerts.
Stoel Winery Lawyers Attend Salud!
Last weekend, Stoel winery lawyers attended Salud! and enjoyed visiting with clients and friends at Domaine Drouhin on Friday afternoon and the Governor Hotel on Saturday evening. Proceeds from this year's Oregon Pinot Noir Auction topped $650,000, a reported 7 percent increase from 2009. Donations help support the Salud! mission of providing Oregon's seasonal vineyard works and their families with access to healthcare services.
FDA Issues Warning Letters to Manufacturers of Caffeinated Alcoholic Beverages
In an update to an earlier blog post, the FDA issued warning letters today to four manufacturers of caffeinated alcoholic beverages. The FDA stated in the letters that caffeine added to malt alcoholic beverages was an “unsafe food additive ” and thus, such products are in violation of the Federal Food, Drug, and Cosmetic Act (“FFDCA”)..jpg)
Recipients of the letters, which included Charge Beverages Corp.; New Century Brewing Co., LLC; Phusion Projects, LLC (d/b/a Drink Four Brewing Co.); and United Brands Company Inc., have 15 days from receipt of the letter to respond to the FDA with their respective mitigation measures. Those companies may also challenge the ruling that their particular products are in violation. Failure to comply could result in enforcement actions by the FDA, including seizure of merchandize.
The FDA’s move was considered an almost certainty given the myriad of recent actions taken by a number of states to curb or ban the sale of caffeinated alcoholic beverages.
FDA May Issue Warning on Alcoholic Energy Drinks; States Move to Ban "Blackout in a Can"
Amidst rising incidences of hospitalizations in college and teenage drinkers linked to consumption of alcoholic energy drinks, the Washington State Liquor Control Board banned their sale effective tomorrow, November 18, 2010. The move came on the heels of a request by Washington Governor Christine Gregoire, whose office stated in a November 10 press release that they were “…particularly concerned that these drinks tend to target young people.”
The Liquor Control Board placed the ban in an emergency ruling which will last for 120 days. During that time, the Liquor Control Board will move to make the ban permanent. Liquor Control Board Chairperson Sharon Foster stated, “[t]he Board is acting in the public safety…the Board is acting now to ensure these products do not contribute to a tragedy before the Food and Drug Administration or Legislature can act.” Earlier this year, the Liquor Control Board had lobbied for State legislative action to ban the sale of caffeinated malt beverages in Washington but those efforts were unsuccessful. A list of particular products affected by the Liquor Control Board’s ruling can be seen here.
Washington’s ban is merely the most recent action in an ever increasing movement by states to control the sale of caffeinated alcoholic beverages. The Oregon Liquor Control Commission Chairman stated in an October press release that, “…alcoholic energy drinks should be removed from the market until further research isdone.” The OLCC also stated that it is currently looking into possible regulatory efforts with the state legislature and is reaching out to community organizations to warn them of the dangers of the beverages.
While California’s Department of Alcoholic Beverage Control has not yet made a statement regarding the drinks, Connecticut announced Monday that it had reached agreements with state distributors to voluntarily stop shipments of caffeinated alcoholic beverages starting December 10, 2010. Michigan has banned one particular brand of caffeinated alcoholic beverage, Four Loko. New York has reached an agreement with Phusion Projects LLC, the manufacturer of Four Loko, to stop sales in the state until “…emerging science, regulatory developments or other relevant changes in circumstances arise." Utah and Oklahoma have followed Washington’s lead in banning the sale of any brands altogether. Massachusetts’ Alcoholic Beverage Control Commission stated that it will file an emergency ruling, similar to Washington’s, on Monday, November 22, 2010.
At the federal level, the Food and Drug Administration (“FDA”) is currently reviewing whether caffeine is a safe additive to alcoholic beverages. A negative finding would essentially ban the sale of caffeinated alcoholic beverages nationwide. It is widely assumed the FDA will, in fact, reach a negative finding. NY Senator Chuck Schumer, who has been lobbying for a ban on the drinks, stated that the FDA decision “…should be the nail in the coffin of these dangerous and toxic drinks.” The FDA decision is expected within the week.
Bernie Kipp at Great American Distiller's Festival
Craft distillers from coast to coast attended the 6th Annual Great American Distiller’s Festival (GADF) on October 23 and 24, 2010 at the Tiffany Center in NW Portland. 38 separate distilleries poured more than 70 gins, vodkas, whiskey’s and rums in a celebration of all things “spirited.”
Special events included seminars for distillers and tours of Portland distilleries. .jpg)
Seminar presenters included Bernie Kipp Alcohol Compliance Advisor for Stoel Rives LLP; Japanese Whiskey distiller Yuri Kato, and former master distiller for Maker’s Mark, Dave Pickerell.
GADF hosted the largest number of distillers and attendees to date, reflecting the growth of craft distilling in the United States and Oregon. Oregon is an established hotbed for craft breweries and wineries, and craft spirits are quickly becoming the third leg of the fermentation stool. Oregon boasts nearly two dozen distilleries, with at least eight in Portland. Several Portland distillleries have made “distillery row” in South East Portland official by forming a nonprofit organization and offering tours of each distillery at particular hours.
