On November 15, 2010, the Governor's Office received an appeal from Mr. Timothy Parker relating to the Washington Liquor Control Board's Emergency Rule banning the sale of all alcohol energy drinks. The Governor has no jurisdiction to take action under RCW 34.05.350(3) and RCW 43.17.010 and therefore denied the appeal on November 22, 2010.
DATE: November 22, 2010.
Narda Pierce
General Counsel
to the Governor
November 22, 2010Timothy J. Parker
Carney Badley Spellman
701 Fifth Avenue, Suite 3600
Seattle, WA 98104-7010
RE: Petition for Stay of Emergency Rule
Dear Mr. Parker:
Thank you for your letter of November 15, 2010, in which you
"request an immediate stay of the Washington Liquor Control
Board's November 10, 2010 Emergency Rule banning the sale of
all 'alcohol energy drinks'."
RCW 34.05.350 (1)(a) allows adoption of an emergency rule when
"immediate adoption, amendment, or repeal of a rule is
necessary for the preservation of the public health, safety,
or general welfare." RCW 34.05.350(3) provides: "Within
seven days after the rule is adopted, any person may petition
the governor requesting the immediate repeal of a rule adopted
on an emergency basis by any department listed in RCW 43.17.010." The Washington Liquor Control Board is not a
department listed in RCW 43.17.010. Therefore, the Governor
lacks the jurisdiction to take the direct action requested in
your letter.
Notwithstanding this jurisdictional issue, the Governor
supports the action taken by the Washington Liquor Control
Board. The Governor shares the concerns of the Liquor Control
Board that alcohol energy drinks promote a situation where
individuals may become inebriated, but cannot judge their own
condition, which poses a serious risk to human health and
public safety.
Your letter suggests that the individual states should not
take action while the Food and Drug Administration assesses
the safety of these products. The Food and Drug
Administration issued warning letters on November 17, two days
after your letter, indicating the combination of caffeine and
alcohol in the drinks creates a public health concern. In any
event, states have broad power to regulate the sale of
alcoholic beverages under section 2 of the Twenty-first
Amendment. Further, you outline concern about financial
losses associated with the adoption of the emergency rule.
However, companies have long been aware that when they invest
in the manufacture of alcoholic beverages, state regulation to
protect public health and safety may impact their sales. See
Mugler v. Kansas, 123 U.S. 623 (1887).
You have asked for the opportunity to explain United Brand's
Joose products and marketing to the Board. That opportunity
is available now. An emergency rule remains in effect for a
limited time period of no longer than 120 days after filing.
The Liquor Control Board will receive your input on proposed
permanent rules that would prohibit the sale, importation, and
distribution of alcohol energy drinks in the state of
Washington. Further, the Liquor Control Board will hold at
least one public hearing before the rules are adopted.
Sincerely,
Narda Pierce
General Counsel