WSR 10-24-055

OFFICE OF THE GOVERNOR


[ Filed November 29, 2010, 10:13 a.m. ]


NOTICE OF APPEAL

RCW 34.05.330(3)



Pursuant to RCW 34.05.330(3), you are hereby notified for publication in the Washington State Register that:

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, 2010

Timothy 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

Washington State Code Reviser's Office