The reason: A state law exception that protects confectioneries
Rum-laced fruitcake and boozy bonbons can be sold in Louisiana, but wine ice cream will need action by legislators before it can hit grocers’ freezers.
State Alcohol and Tobacco Control Commissioner Troy Hebert said Thursday that he consulted legal experts after Mercer’s Dairy, of New York, sought permission to sell cherry merlot, peach white zinfandel, red raspberry chardonnay and other alcohol-laced ice cream flavors in Louisiana.
Hebert’s request resulted in a flurry of legal research on where wine ice cream falls under state law.
An Attorney General’s Office opinion lists the possibilities: Is it an alcoholic beverage, a beverage of low alcoholic content or an adulterated food?
The verdict is that wine ice cream is an adulterated food like boozy bonbons or fruitcake, but without an exception built into state law so it can be sold in Louisiana.
“The answer is it looks like if they want to sell it here, the Legislature’s going to have to weigh it and pass a law,” Hebert said.
Dalton Givens, chief operating officer for Mercer’s, said he was surprised that a state known for letting the good times roll would prohibit his product.
He said the ice cream can be bought in Texas and, soon, in Mississippi.
“What better place than someplace like New Orleans, the Big Easy, for this type of product?” Givens said.
The reasons for why the ice cream cannot be sold in Louisiana are contained in a five-page opinion that the state Attorney General’s Office released Thursday. The office first concluded that the ice cream is not an alcoholic beverage since it contains less than 6 percent alcohol.
Caldwell’s office then looked at the language on beverages of low alcoholic content and determined the ice cream — with an alcohol content of up to 5 percent — seemed to fit there.
However, state law goes on to say that the definition does not apply to flavoring, extracts, syrup or food products.
The exclusions led the office to a section on adulterated foods, which are prohibited in Louisiana. Exceptions have been built in by legislators for confectioneries containing alcohol but not for ice cream.
“We note that wine ice cream is relatively new to the market, and some states such as New York have amended their laws to deal with this unique product. If Mercer’s Wine Ice Cream or similar products are to be sold in the State of Louisiana it will have to be addressed by the legislature,” Assistant Attorney General Emily Andrews wrote.
Givens said Mercer’s put the ice cream on the market in 2008 and found it can be more readily sold in Asia, the Caribbean and Europe than in the United States because of prohibitions like the one in Louisiana.
He said he cannot sell the ice cream in his native South Carolina.
Givens said the product is premium ice cream with a low alcohol content.
“If you ate maybe a quart of wine ice cream, it would be like half a glass of regular wine,” he said.
Hebert said legislators can address the issue if they want to buy wine ice cream in Louisiana.
“It’s an interesting twist,” he said.