Agreeing that they are dealing with a new form of alcoholic beverage, not just exploring how to more accurately label flavored malt beverages, members of the state Alcoholic Beverage Control Commission decided Thursday that they need directions from the Legislature.
Although at least one commissioner believes adamantly that doing so abdicates the right and responsibility of the board, a 3-2 majority decided that the question calls for new legislation not agency rule-making.
"It seems to me that the proposed labeling rule and the classification rule force us to create a new legal definition for flavored malt beverages," said Commissioner Gordon Strachan, citing what he considers ambiguous language in the beer-labeling statute.
Flavored malt beverages, such as Mike's Hard Cider, are different from those that the statute is intended to regulate. "Would this be satisfied merely by a brand name such as Smirnoff or Mike's Hard Cider or by the use of the term malt beverage on the label?"
Commissioner Kathryn Balmforth said the board is abdicating its right and responsibility to take broad mandates outlined in state statute and convert them into particular use.
"We've always had the statutory authority to do so through rule-making," Balmforth said. Sending the decisions to the Legislature "is not how it works; this is asking them to quibble about the size of type on a label."
In order to avoid a complete relabeling of traditional beer products, Strachan said, further direction is needed from Capitol Hill, "so Utah doesn't stand out as doing something unique and strange that is likely to bring adverse publicity and thereby hurting our tourist industry."
A proposed rule before the board attempted to classify flavored malt beverages but actually created what Strachan and two other commissioners say could be seen as a new legal definition of "flavored malt beverage." Also included in the mix are new alcohol-based energy drinks.A recent study by an alcohol-industry monitor, the Marin Institute, showed that 31 percent of 12- to 17-year-olds and 34 percent of 18- to 24-year-olds regularly consume energy beverages. Utah law enforcement officials, like others around the nation, say alcoholic energy drink producers are mimicking labels and can designs of regular caffeine-based energy drinks.