US State Statutes Banning Powdered Alcohol: Exceptions and Penalties

Abstract

To examine state statutes banning powdered alcohol, we identified relevant statutes in all 50 states and the District of Columbia through a search (initial search March 2016; follow-up search November 2016) using the legal research database LexisNexis. To identify the laws, we used the following search terms: “concentrated alcohol,” “crystalline alcohol,” “granulated alcohol,” “palcohol,” and “powdered alcohol.”

As of November 2016, 31 states had statutory bans on powdered alcohol. Statutes in 22 states outline penalties for violating the state’s ban on powdered alcohol. Five states include suspension and revocation of alcohol beverage licenses and permits among the penalties. Thirteen states provide exceptions to their ban on powdered alcohol for bona fide scientific research. Twelve states have exceptions for powdered alcohol designed for commercial use or not intended for human consumption.

With concerns expressed that powdered alcohol may lead to greater alcohol consumption, particularly among minors, the majority of state legislatures have demonstrated their willingness to restrict access to novel alcohol products to protect the public’s health. However, the effectiveness of these laws should be evaluated if the product does become available.

In March 2015, the US Department of Treasury Alcohol and Tobacco Tax and Trade Bureau, granted approval for the sale of Lipsmark, LLC’s powdered alcohol product, Palcohol.¹ The product’s approval raised questions about potential health harms, leading to calls for regulators to ban the product.

In Baltimore, Maryland, physicians and public health leaders stated,

Powdered alcohol is easier to conceal, facilitating use by youth . . . [and making] oversight more difficult for parents, teachers, and law enforcement officials. Powdered alcohol may also lead to greater and unintentional alcohol consumption, which can lead to poisoning, motor vehicle accidents, and even death.²

The American Medical Association agreed, adopting policy supporting “federal and state laws banning the manufacture, importation, distribution, and sale of powdered or crystalline alcohol intended for human consumption.”³

Powdered alcohol is defined as any powder or crystalline substance containing alcohol that is produced for direct use or reconstitution.⁴ Powdered alcohol differs from other alcohol products in that the alcohol concentration depends on the amount of powder or liquid used in mixing the beverage. Concerns have been raised that multiple packets of powdered alcohol could be mixed together or that powdered alcohol could be mixed with liquid alcoholic beverages instead of water to increase their alcohol concentration.⁵ Packets of powdered alcohol could also be mixed with energy drinks, and the combination of caffeine and alcohol has previously raised safety concerns. Furthermore, concerns have been raised that powdered alcohol could be used to “spike” nonalcoholic beverages.⁵ Because the product is in powdered form, it could be self-administered via nasal insufflation, as initially acknowledged but later retracted on Palcohol’s Web site, to induce rapid intoxication.

Although powdered alcohol products have been developed in other countries, manufacturing and regulatory hurdles have limited their availability.⁴ Lipsmark, LLC has decided not to manufacture or distribute Palcohol but has announced plans to license the manufacturing process to a representative in each country for a fee.⁶ Because of the current unavailability of the product, research has not been conducted to substantiate or disprove concerns about powdered alcohol. However, many states have enacted laws addressing it.

METHODS

We identified relevant state statutes in all 50 states and the District of Columbia by searching the legal research database, LexisNexis. We conducted the initial search in March 2016 and a follow-up search in November 2016. We used the following search terms to identify the laws: “concentrated alcohol,” “crystalline alcohol,” “granulated alcohol,” “palcohol,” and “powdered alcohol.”

We analyzed statutes to determine whether states allow exceptions to their ban on powdered alcohol, whether there were penalties for violating the ban, and whether state agencies had the authority to revoke an alcohol beverage license or permit.

RESULTS

Nearly all states have considered legislation prohibiting the possession, purchase, sale, offer to sell, or use of powdered alcohol (among other things). As of November 2016, 31 states had statutory bans on powdered alcohol. This includes a temporary ban in Maryland, through 2018. Most legislatures acted on the basis of the potential public health harms as outlined by physicians, public health officials, and law enforcement. However, some legislators felt the product should be regulated and taxed similar to liquid alcohol.

We excluded state statutes from our analysis that defined powdered alcohol to permit its regulation (CO, DE, and NM), called for study (NH), and had temporary bans that had expired (MN). We also excluded actions taken by liquor control boards in 4 states (MD, MA, NH, and PA) to outlaw powdered alcohol products.

Statutes in 22 states outline penalties for violating the state’s ban on powdered alcohol. Five states include suspension and revocation of alcoholic beverage licenses and permits among the penalties. Thirteen states provide exceptions to their ban on powdered alcohol for bona fide scientific research conducted by health care providers, hospitals, state institutions, private colleges or universities, and pharmaceutical or biotechnology companies. Twelve states have exceptions in place for powdered alcohol designed for commercial use or not intended for human consumption.

DISCUSSION

The 21st Amendment granted states the authority to create regulatory and enforcement systems for the sale and consumption of alcoholic beverages. However, the federal government retains a role in the regulation of alcohol products because of their authority to tax and regulate interstate commerce.

Federal Regulatory Authority

Federal authority to regulate alcohol is split between several agencies. The Tax and Trade Bureau has the authority to review the formulation and labeling of distilled spirits products. The Food and Drug Administration has the authority to act with respect to adulterated food products. The Federal Trade Commission regulates the advertising of alcoholic beverages. Federal agencies have little authority to regulate alcohol products on the basis of their potential for public health harms.

Consistent with their authority, the Tax and Trade Bureau approved labels for powdered alcohol in 2015. The label contains the standard government warning regarding consuming alcohol during pregnancy and the risk of birth defects, alcohol impairing the ability to drive a car or operate machinery, and alcohol causing health problems.¹ The Food and Drug Administration, consistent with their authority, evaluated the regulatory status of the nonalcohol ingredients in these products and concluded that the ingredients were in compliance with Food and Drug Administration regulations.^7,8

State Statutes

We analyzed statutes banning powdered alcohol to determine their consistency and comprehensiveness. The variables we examined included whether powdered alcohol was defined in the statute, whether penalties for violating the law were outlined, and whether there were exceptions to the ban for research purposes or commercial use (Table 1).

TABLE 1—

US State (n = 31) Statutes Banning Powdered Alcohol: November 2016

State	Defined	Exception for Research	Exception for Commercial Usea	Penalty	License Suspension or Revocation
Alabama	✓	✓		✓
Alaska			✓
California	✓		✓	✓
Connecticut	✓			✓
Georgia	✓	✓		✓	✓
Hawaii	✓	✓	✓	✓
Idaho	✓	✓		✓	✓
Illinois	✓		✓	✓
Indiana	✓	✓		✓
Kansas	✓
Louisiana
Maine				✓	✓
Maryland	✓			✓
Massachusetts	✓		✓	✓
Michigan	✓	✓		✓
Nebraska	✓	✓		✓	✓
Nevada	✓			✓
New Jersey	✓		✓
New York
North Carolina	✓
North Dakota	✓	✓		✓
Ohio	✓		✓
Oregon	✓	✓	✓
Rhode Island		✓		✓
South Carolina	✓	✓	✓	✓
Tennessee	✓		✓	✓	✓
Utah	✓	✓	✓
Vermont	✓			✓
Virginia	✓			✓
Washington	✓	✓		✓
West Virginia	✓		✓	✓
Total, no.	26	13	12	22	5

^aIncludes states that define powdered alcohol as being intended for human consumption.

Most (26) but not all state statutes define powdered alcohol. Among those that do, the most common definition is a powdered or crystalline substance that contains any alcohol for either direct use or reconstitution. Twenty-two states include penalties for violating the statute, with the most common penalty being a misdemeanor. Several states increase the punishment for subsequent violations. Five states also provide that a violation of the statutory ban is grounds for suspension or revocations of alcohol beverage licenses or permits.

Exemptions for commercial use are of interest because Lipsmark, LLC has indicated that they will also produce an industrial formulation. Although specific uses have not been clearly identified, examples include medical applications (antiseptic), manufacturing applications (windshield wiper fluid), and energy applications (fuel source).

Many states also have exemptions in place for research purposes. Those commonly exempted from the powdered alcohol ban for research purposes include health care providers or hospitals operating primarily to conduct scientific research, state institutions, pharmaceutical or biotechnology companies; and private colleges and universities. Exemptions for research could be used to conduct clinical research on the ingestion of powdered alcohol, including how its pharmacologic effects differ from those of liquid alcohol.⁹

PUBLIC HEALTH IMPLICATIONS

Excessive alcohol use is the fourth leading preventable cause of death in the United States.¹⁰ Alcohol continues to be the most widely used substance of abuse among US youths. In 2014, roughly 8.7 million underage persons in the United States aged between 12 and 20 years reported using alcohol during the past month, including 5.3 million who reported binge alcohol use and 1.3 million who reported heavy alcohol use.¹¹

With concerns expressed that powdered alcohol may exacerbate these problems, the majority (60%) of state legislatures have demonstrated their willingness to restrict access to novel alcohol products to protect the public’s health. However, the effectiveness of these laws should be evaluated if the product becomes available.