Ice cream, and other frozen desserts, made with wine, beer or cider with an alcohol content of no more than five percent (5%) is not considered an alcoholic beverage. Even though it is not designated as an alcoholic beverage, if the product has an alcohol content of at least one-half of one percent (0.5%) by volume but no more than five percent (5%) by volume it cannot be sold to any person under the age of twenty-one. In addition, if the product is sold for off-premises consumption, the sale is subject to the following restrictions:
a) the product must be in the sealed package as received from the manufacturer or distributor;
b) the product’s package contains statements regarding: the presence of wine, beer or cider in the product; the prohibition regarding sales to individuals under the age of twenty-one; the risk of birth defects if consumed by a woman during pregnancy; the impairment to the ability to drive caused by the consumption by of the product; and
c) signage in the retail establishment containing the above statements.
Please note that the above exemptions apply only if the alcohol is an ingredient in the confectionery, ice cream or frozen dessert. If the alcohol or alcoholic beverage is separate from the confectionery, ice cream or frozen dessert, the sale of the alcohol or alcoholic beverage (if it has an alcohol content of at least one-half of one percent (0.5%) is governed by the ABCL. For example, a cake that is baked using an alcoholic beverage is not subject to the ABCL if the alcohol content is no more than five percent (5%). However, if there is no alcohol in the cake, but it is sold with a container of an alcoholic beverage, the sale of that container is subject to the provisions of the ABCL.
Please also note that an alcoholic beverage includes documents such as warehouse receipts, contracts, etc., that related to alcoholic beverages. Any person engaged in the manufacture (other than an individual for that individual’s personal household consumption), distribution or sale of an alcoholic beverage must have the appropriate license or permit issued by the Authority.
This blog post is not intended to consist of legal advice and you should always consult with a lawyer before acting on anything you find on the Internet. If you have questions or comments about this post, about the topic, or if you need legal assistance, you should feel free to give us a call or send us an email. Let us know how a New York City liquor license lawyer can assist you.