On Friday December 3, 2010, the Illinois Liquor Control Commission issued the following notice to Illinois license holders:

Notice to License Holders on the Sale of “Joose”, “Max”, “Four Loko”

Within the past few weeks, the U.S. Food and Drug Administration issued warning letters to two Illinois non-resident dealers, United Brands and Phusion Projects, which stated that their trademarked caffeinated alcoholic beverages, Joose, Max (United) and Four Loko (Phusion) are adulterated or unsafe for consumption.   As a result of the FDA warning letters, the Federal Tax and Trade Bureau (TTB) issued a statement that the aforementioned brands of alcoholic liquor are mislabeled because they are adulterated. 

Neither the FDA nor the TTB has taken any immediate enforcement action against the sale of these products other than to issue warning letters to the manufacturers.  The manufacturers of these products have indicated that, as a result of the federal government actions, they will reformulate their products to make them safe for consumption.

Therefore, in light of these developments, the Illinois Liquor Control Commission makes the following statement:

1.      Based upon the actions of the FDA and TTB, the Commission strongly recommends that retailers discontinue the sale of the above mentioned products to consumers.  Continuing to sell adulterated and mislabeled products may increase the risk of civil liability if it is proven that the consumption of these products caused public harm. 

2.      Because the TTB has determined said products are mislabeled, distributors should not continue purchasing these products until they have been properly reformulated to meet FDA standards and the new products have been registered by the ILCC.

3.      While the Commission does not mandate that retailers return said products or distributors accept their return, the Commission will not consider the voluntary return of these products for cash or credit as an illegal return or consignment sale.  However, if a distributor accepts a return from one retailer, then the distributor must accept a return from all other retailers who request return.  All returns and credits and reasons for such should be properly documented on a written invoice. 

4.      While this statement does not apply to the sale of any other caffeinated alcoholic beverages other than those specifically mentioned in this statement, all license holders are on notice that future federal, state and local government actions may prohibit the immediate sale and distribution of all other similar products.  Therefore, a purchaser of similar products may be at risk of being prohibited from selling the same and purchase at their own risk.

For further questions on this issue, please feel free to contact the Christopoulos Law Group at 312-587-7594