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Oregon Bulletin

January 1, 2011

 

Oregon Liquor Control Commission
Chapter 845

Rule Caption: Adopt rule prohibiting the sale of certain alcohol energy drinks designated adulterated by the FDA.

Adm. Order No.: OLCC 14-2010(Temp)

Filed with Sec. of State: 11-20-2010

Certified to be Effective: 11-20-10 thru 5-18-11

Notice Publication Date:

Rules Adopted: 845-010-0146

Subject: Certain alcohol energy drinks were determined to be adulterated products by the U.S. Food and Drug Administration (FDA) on November 17, 2010. Based on the warnings issued to the manufacturers of these alcohol products by the FDA, as well as the Federal Trade Commission (FTC) and the Alcohol and Tobacco Tax and Trade Bureau (TTB), the Commission finds that there is a need to promptly prohibit the sale or offering for sale of the adulterated products to protect public safety. ORS 471.446(2) allows the Commission to prohibit licensees from selling such adulterated products. We need to adopt this rule on a temporary basis in order to protect the immediate health and safety of the public.

Rules Coordinator: Jennifer Huntsman—(503) 872-5004

845-010-0146

Alcohol Energy Drinks

(1) No licensee may sell or offer for sale Core High Gravity HG Green, Core High Gravity HG Orange, Lemon Lime Core Spiked, Moonshot, Four Loko, Joose, and Max, which contain the “unsafe food additive” of caffeine and which were determined to be “adulterated” products on November 17, 2010 by the U.S. Food and Drug Administration under 21 U.S.C. 342(a)(2)(C).

(2) Violation of this rule is a Category II violation.

Stat. Auth.: ORS 471, including 471.030, 471.040 & 471.730(1) & (5)

Stats. Implemented: ORS 471.446(2)

Hist.: OLCC 14-2010(Temp), f. & cert. ef. 11-20-10 thru 5-18-11

 

Rule Caption: Amend rule to allow suppliers to exchange adulterated alcohol products.

Adm. Order No.: OLCC 15-2010(Temp)

Filed with Sec. of State: 12-3-2010

Certified to be Effective: 12-3-10 thru 5-31-11

Notice Publication Date:

Rules Amended: 845-013-0070

Subject: Certain alcohol energy drinks were determined to be adulterated products by the U.S. Food and Drug Administration (FDA) on November 17, 2010. Based on the warnings issued to the manufacturers of these alcohol products by the FDA, as well as the Federal Trade Commission (FTC) and the Alcohol and Tobacco Tax and Trade Bureau (TTB), the Commission found that these products contain an adulterated ingredient and to protect public safety adopted OAR 845-010-0146 prohibiting the sale or offering for sale of the adulterated products as of November 20, 2010. However, current Oregon statutes and rules do not allow wholesalers and manufacturers to exchange products containing adulterated ingredients that were previously delivered to retailers for other equivalent products that have not been banned from sale. This means that a substantial amount of these adulterated products would remain in the state where they might be available to the public rather than being safely returned to the wholesalers or manufacturers. Allowing wholesalers to exchange products containing adulterated ingredients that have been banned from sale in the state for comparable saleable products is necessary to ensure that all of the adulterated products are promptly removed from retail premises in the state, thereby significantly reducing the risk that the products will be sold or otherwise made available to be consumed. We need to adopt this rule on a temporary basis in order to protect the immediate health and safety of the public.

Rules Coordinator: Jennifer Huntsman—(503) 872-5004

845-013-0070

Services of Nominal Value; ORS 471.398(5)

(1) ORS 471.398(5) prohibits a manufacturer or wholesaler from giving a retailer any services except those described in 471.398(5) and the two categories of services of nominal value described in this rule.

(2) A manufacturer or wholesaler may give basic services that support products on draft such as:

(a) Inspecting draft equipment, coolers and cooling equipment for sanitation and quality control;

(b) Performing emergency repairs on draft equipment;

(c) Instructing retail licensees in the proper use, maintenance and care of draft and cooling equipment;

(d) Tapping kegs during regular delivery calls.

(3) A manufacturer or wholesaler may give basic marketing support services for the manufacturer’s or wholesaler’s alcoholic beverage products such as:

(a) Delivering to the designated place on the retailers premises. If a retailer closes a store, the wholesaler or manufacturer may move product to another of the retailer’s stores in the wholesaler’s territory. The manufacturer or wholesaler may move only his/her brands;

(b) Rearranging or replenishing bottles or cans of the manufacturer or wholesaler’s brands;

(c) Pricing packages and containers of the manufacturer’s or wholesaler’s brands but not repricing packages and containers. Repricing includes entering the Uniform Price Code (UPC) or pricing information in the retailer’s system but does not include changing shelf tags;

(d) Promptly exchanging alcoholic beverages delivered in error for the proper product, provided both businesses reflect the exchange in their records;

(e) Exchanging products that are leaking, deteriorating, near or past their shelf date, have damaged or missing labels, or have damaged containers for an equal quantity of identical product, or exchanging products that have been found to contain adulterated ingredients (See also OAR 845-013-0020(1)(b)). If the amount exchanged is one case or less of malt beverages or if the product contains adulterated ingredients, the manufacturer or wholesaler may substitute another malt beverage product of similar value. A manufacturer or wholesaler may not exchange product that the retailer or retailer’s customer damaged;

(f) Installing, cleaning and repairing point of sale materials allowed in OAR 845-013-0050;

(g) Providing an employee to assist in educational seminars and wine or malt beverage tastings that a retailer conducts for the public as long as each licensee complies with OAR 845-006-0353, 845-006-0427, and 845-006-0450.

NOTE: ORS 471.186(4) prohibits a manufacturer or wholesaler from providing or paying for a person to serve samples at package stores except as provided in ORS 471.402.

(h) Providing celebrities or performers to promote the manufacturer’s or wholesaler’s product on a retailer’s premises as long as:

(A) Neither the manufacturer/wholesaler nor retailer advertise or promote the celebrity or performer’s visit;

(B) The celebrity or performer does only a brief performance, if any;

(C) The manufacturer or wholesaler provides no alcoholic beverages to the retailer’s customers;

(D) The manufacturer or wholesaler provides the celebrities no more than once per year per retail premises.

Stat. Auth.: ORS 471, 471.030, 471.040, 471.730(1) & (5)

Stats. Implemented: ORS 471.398(5) & 471.446(2)

Hist.: OLCC 8-1987, f. 3-13-87, ef. 4-1-87; OLCC 7-1992, f. & cert. ef. 7-1-92; Renumbered from 845-010-0126; OLCC 8-1996, f. 5-6-96, cert. ef. 7-1-96; OLCC 8-1997, f. 2-28-97, cert. ef. 3-15-97; OLCC 17-2000, f. 11-9-00, cert. ef 12-1-00; OLCC 19-2000, f. 12-6-00, cert. ef. 1-1-01; OLCC 9-2003, f. 6-27-03, cert. ef. 7-1-03; OLCC 15-2010(Temp), f. & cert. ef. 12-3-10 thru 5-31-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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