Bob Alderson, Attorney on Behalf of Casey's General Store, Inc.
(March 24, 2005)
Chairman Brungardt and Members of the Committee:
My name is Bob Alderson, and I am appearing on behalf of Casey’s
General Stores, Inc. in support of Senate Bill No. 299. I also am authorized
to present this testimony on behalf of the Petroleum Marketers and Convenience
Store Association of Kansas, Inc., QuikTrip and the Kansas Food Dealers
Association. These organizations and businesses have formed a coalition
for the purpose of supporting legislation which will enable coalition
members to regain an appropriate share of he market for cereal malt products.
Collectively, the coalition of retail grocers and convenience stores has thousands of locations throughout Kansas; employs thousands of Kansans, with an annual payroll in the hundreds of millions of dollars; pays millions of dollars in Kansas Property taxes; and also collects and remits millions of tax dollars to the State of Kansas.
Background – Currently, grocery stores and convenience stores are licensed to sell cereal malt beverage (CMB) in the original and unopened containers. CMB is statutorily defined as a malt product containing not more than 2.3 % alcohol by weight. CMB is commonly referred to as “3.2 beer.” Substantially all other alcoholic malt beverages are defined as “beer” and may be sold by the package only in retail liquor stores.
In 1937, the Kansas legislature defined the terms “spirituous, malt, vinous, fermented or other intoxicating liquors” as meaning “all beverages which contain three and two tenths percent (3.2%) of alcohol by weight and all such beverages are herby declared intoxicating liquors under the laws of this state.” (L. 1937, Ch. 213, S1, amending S21-2109 G.S. 1935) That same enactment also declared that, whenever the terms “intoxicating liquors” and “intoxicating liquor” were used in the statues they were to be construed as meaning beverages containing more than 3.2% of alcohol by weight. That same year, the legislature enacted a cereal malt beverage law, which is the forerunner of the present statutes contained the K.S.A. 41-2701 et seq. Thus, from that point forward, an alcoholic malt product containing not more than 3.2% of alcohol by weight was not regarded by law as an intoxicating liquor, while any such product containing more than 3.2% alcohol by weight was considered an intoxicating liquor.
The 1937 enactments were passed in the context of Article 15, Section 10 of the Kansas Constitution, which prohibited the manufacture an sale of intoxicating liquors. That prohibition remained until the further amendment of this section in 1948, allowing the legislature to regulate, license and tax the manufacture and sale of intoxicating liquor. Following that significant constitutional about face, the Kansas Liquor Control Act was enacted in 1949. However, the cereal malt beverage statutes were continued in existence, and the distinction between 3.2 beer and beer was perpetuated, with such distinction remaining today.
The law establishing the drinking age for all alcoholic beverages at 21 was passed in 1985. While the sale of beer by retail liquor stores has increased significantly since that time, there has been a corresponding decline in the sale of CMB by grocery stores and convenience stores. These trends in the sale of alcoholic malt beverages are primarily the result of a public misperception that CMB products are “weaker” and of a lesser quality than the alcoholic malt beverages sold in liquor stores.
This misconception originated during the time when there was a difference in the legal drinking age. Persons between the ages of 18 and 21 were allowed to purchase CMB, but were not allowed to purchase beer or alcoholic liquor. Presumably, when the enactment of the Kansas Liquor Control Act perpetuated the separate classifications of alcoholic malt beverages, the purpose was to make available only to “adults” the “strong beer”, based on a belief that there was a significant difference in alcoholic content of these classes of cereal malt products. Notwithstanding, this distinction became translated into a perception that CMB was not of the same quality as beer.
Thus, when the drinking age for all alcoholic beverages was established as 21, not only did retailers of CMB lose a significant number of potential purchasers (i.e., persons who were 18, 19 and 20 years of age), person who were 21 years of age and older began purchasing “beer” from retail liquor stores, rather than purchasing CMB from licensed CMB retailers, because of the misconception that CMB is of lesser quality than beer.
Thus, the purpose of SB 299 is to provide an opportunity for local units of government to make applicable in their jurisdictions a statutory scheme which recognizes that there is no appreciable difference in alcoholic strength between CMB and beer. The applications of this statutory scheme inn a local community will eliminate the artificial distinction between CMB and beer, thereby providing consumers in such community a wider choice as to where to purchase cereal malt products.
Senate Bill No. 299 – The coalition sponsoring SB 299 has previously sponsored similar legislation in several prior sessions. However, the coalition’s prior bills have proposed to make the reclassification of CMB applicable statewide. It is now clear that such proposal does not present an acceptable legislative option. Thus, the coalition’s proposal to reclassify CMB, as embodied by SB 299, requires the exercise of a “local option” by a city or county, in order for the bill’s provisions to become operative.
The coalition recognizes that there are a variety of viewpoints and perspectives throughout our state, regarding the sale and consumption of alcoholic beverages. In many instances, geography can influence those attitudes. That is why the local option provision in SB 299 is so important. It will allow each community to decide for itself whether CMB should be reclassified to include malt products containing not more than 5 Read Selected Testimony% of alcohol by weight. Each community will be able to exercise the same right of self determination that has been afforded by many of the other state laws enabling the local sales of alcoholic beverages.
Local Options – SB 299 affords each city in which the sale of alcoholic liquor is currently authorized, to adopt a resolution providing that the Cereal Malt Beverage Retailers’ Act (Sections 4 through 53 of SB 299) shall be applicable in such city. The adoption of such resolution is made subject to a protest petition and, if the petition is sufficient, an election to determine whether the resolution shall become effective. In addition, Section 2 of SB 299 also provides that the Cereal Malt Beverage Retailers’ Act shall be applicable to any township in which alcoholic liquor may currently be sold, if the board of county commissioners of the county in which such township is located shall adopt a resolution make the act applicable.
Section 56 provides a local option to cities and counties in which alcoholic liquor currently may not be sold and in which CMB only may be sold. The governing body of any such city may adopt a resolution providing that the definition of cereal malt beverage in K.S.A. 41-2701 shall be re-defined to increase the alcoholic content of such beverage from 3.2% to 5.0%, for the purpose of applying cereal malt beverage statutes in that city. Such resolution is subject to protest and election, if necessary, to become effective. Likewise, the board of county commissioners of any such county where alcoholic liquor can not be sold and only CMB may be sold may adopt the same resolution, redefining cereal malt beverage as one which contains not more than 5% of alcohol by weight, for purposes of applying the cereal malt beverage statutes within such county and outside the incorporated limits of any city within such county.
Cereal Malt Beverage Retailers’ Act -- As noted previously, Sections 4 through 53 of SB 299 comprise the Cereal Malt Beverage Retailers’ Act. Notable among these sections is Section 5, which contains definitions applicable to the new act. This section is patterned after K.S.A. 41-102, which contains the definitions applicable to the Kansas Liquor Control Act. However, in Section 5 of SB 299, “beer” is defined as a malt beverage having more than 5.0% alcohol by weight, while “cereal malt beverage” is defined as a malt beverage having not more than 5..0% alcohol by weight. The change in the alcohol content of these products will be addressed subsequently. However, suffice it to state these definitional changes are important because, when the definition of cereal malt beverage is changed to increase its alcohol content, the newly-defined cereal malt beverage includes products which are now sold in the original and unopened containers only by retail liquor dealers, and sold by the drink only by clubs, drinking establishments, caterers and temporary permit holders under the Club and Drinking Establishment Act.
Thus, the new act must necessarily permit these various licensees located in any city or township in which the Cereal Malt Beverage Retailer’s Act is applicable to continue selling these products. However, it would be highly impractical to attempt amending the Kansas Liquor Control Act and the Club and Drinking Establishment Act to carve out exceptions for local units of government where the local option has been exercised. Therefore, the most expeditious approach for affording these local governments the opportunity to eliminate the somewhat meaningless distinction between 3.2 beer and most domestic beers, is to create a new act containing sections which are revised versions of statutes contained in the Kansas Liquor Control Act, the Club and Drinking Establishment Ace and the cereal malt beverage statutes contained in K.S.A. 41-2701 et seq. The existing statutes, which will not be applicable to a city or township in which the Cereal Malt Beverage Retailers’ Act is applicable, are set forth in Section 2(f). Correspondingly, the new sections comprising the Cereal Malt Beverage Retailers’ Act are revised versions of those statutes, with such revisions being directed primarily at permitting the various licensees under the existing laws which manufacture, sell or distribute beer, to also be a manufacturer, distributor or retailer of the re-defined cereal malt beverage. Attached to this testimony as Attachment A is an explanation of the purpose of each of the new sections contained in SB 299, identifying the existing statute to which it corresponds.
Alcohol Content of Cereal Malt Beverage – As previously noted, Section 5 re-defines CMB as a malt beverage containing not more than 5.0% alcohol by weight, as contrasted to the existing definition in K.S.A. 41-2701 which limits CMB’s alcohol strength to not more than 3.2% of alcohol by weight. However, as will be made clear, there is not an appreciable difference in alcohol content among major domestic brands of CMB and the corresponding brands of beers.
In October of 1985, Governor John Carlin convened the Kansas Liquor Law
Review Commission, chaired by District Judge Herb Rohleder. The final
report of the Commission, which was submitted to Governor Carlin in December
or 1986, contained more than fifty recommendations for actions necessary
to modernize and reform the state’s alcoholic beverage control
laws, as well as to implement the recently –adopted liquor-by-the
drink amendment to the Kansas Constitution. Among these, though, was
the Commission’s recommendation that the distinction between ”strong
beer” and CMB (“weaker beer”) should be perpetuated.
However, Chairman Rohleder presented a separate, dissenting view of this
issue, which appeared in the report. Chairman Rohleder stated as follows:
“The failure of the Commission to recommend elimination of the distinction
between cereal malt beverage and so-called strong beer is disappointing. I disagree
with the recommendation to maintain the hypocritical distinction. Maintaining
the arbitrary distinction serves only to perpetuate a myth that is not grounded
in reality. Current law is inconsistent in that it incorrectly defines 3.2 beer
as non-intoxicating, and places many more restrictions on “strong” beer,
despite the fact that tests prove there is little difference in the alcoholic
content of 3.2 beer and “strong beer” There should be no distinction
made between strengths of beer. All strengths of beer should be permitted to
be sold at current CMB outlets as well as retail liquor stores.” (Emphasis
added.)
The tests referenced in the above-quoted statement by Chairman Rohleder were available to the Commission. Attached to the Commission’s report as Appendix A was a table showing a comparison of strong beer and CMB by alcohol content, as determined in a laboratory analysis by the Kansas Bureau of Investigation. A copy of that comparative test is attached to this testimony as Attachment B. That test was performed inn 1986. Subsequently, the KBI prepared a similar comparative test in the early 1990’s, showing substantially the same results. A copy of that later test also is attached as Attachment C.
These KBI laboratory tests reveal that the major domestic brands of beer sold in retail liquor stores have an alcoholic content of not more than 4.0% by weight. This substantiates the coalition’s assertion that there is not an appreciable difference between the major domestic brands of CMB and their counterpart brands of beer sold in liquor stores.
One recent law journal author placed an interesting spin on the statutory
distinction between CMB and liquor store beer. Kevin Wendell Swain,
in his article, “Liquor
by the Book in Kansas: The Ghost of Temperance Past,” which appeared in
the Spring 1996 issue of the Washburn Law Journal, addressed this statutory distinction
as follows:
“
The legislature should act to eliminate the currently meaningless statutory distinction
between beers of difference alcoholic strength. The law conveys to Kansas consumers
the mistaken impression that cereal malt beverages are significantly less intoxicating
than beer sold by liquor stores. Not only does the illusory distinction mislead,
but to the extent that it succeeds in shifting consumer demand from liquor retailers
to grocers and microbreweries, the law operates to indiscriminately harm legitimate
businesses.” 35 Washburn L.J. 322,340 (1996).
Taxes – There are two considerations which have complicated the coalition’s efforts to develop legislation which is as revenue neutral as possible. First, the newly-defined cereal malt beverage includes products which currently are sold in the original and unopened containers only by retail liquor stores. Second, it is anticipated by the coalition that the application of the Cereal Malt Beverage Retailers’ Act in any city or township will produce some shift in sales of these products from liquor stores to convenience stores and food dealers.
Currently, the sales of beer by retail liquor dealers licensed under the Kansas Liquor Control Act are subject to an 8% liquor enforcement tax on the gross receipts of such sales. On the other hand, sales of CMB pursuant to K.S.A. 41-2701 et seq. Are subject to state and local sales in sales of cereal malt beverage under the new act would likely result in the state’s loss of some enforcement tax revenue. Also, if the lower tax imposed b7 convenience stores and grocers results in a tax-included price that is less than the tax-included price offered by retail liquor stores, this might provide convenience stores and grocers with a competitive advantage.
As another alternative, if sales of cereal malt beverage in the original and unopened containers, regardless of where they are sold, are made subject only to state and local sales taxes, the state also would be deprived of enforcement tax revenue. Likewise, if only the enforcement tax were applied to these sales, the state and local units of government would be deprived of sales tax revenues.
For these reasons, it was determined to make all sales of cereal malt beverage in the original and unopened package under the Cereal Malt Beverage Retailer’s Act subject to both the liquor enforcement tax (Section 57) and the state and local sales taxes (Section 59). (Actually, because it would be very cumbersome to amend the liquor enforcement tax statutes, K.S.A. 79-4101 et seq., to make them applicable to sales under the new act, Section 57 imposes an 8% tax on package sales under the new act, which is to be administered, collected and enforced identically to the liquor enforcement tax.) This, in citied and townships where the Cereal malt Beverage Retailers’ Act is applicable, the new act will likely produce state and local tax revenues in excess of the tax revenues currently produced in these jurisdictions from the sales of beer and CMB.
Constitutionality – In connections with the coalition’s prior legislative proposals, the question of whether the legislature has the constitutional authority to re-define CMB has been raised. Anticipating that the same question may be raised in connection with SB 299, it should be noted that Attorney General Opinion No. 87-48 concluded that the Kansas Legislature has the power to define all beer containing less than 5% alcohol by weight as a cereal malt beverage (CMB). The sponsors of this proposal are unaware of any change in the opinion of that office. Since there are no opinions of any Kansas appellate courts on this specific issue, there can be no guarantee as to this proposal’s constitutionality, which is the case with most proposed legislation. However, in the absence of such definitive case law, the above –referenced Attorney General Opinion provides credible authority.
Conclusion – In conclusion, we want to emphasize that the real issue involved in SB 299 is not a liquor issue. It is an economic issue. Raising the drinking age to 21, authorizing liquor by the drink and the persistent misconception by consumers that CBM is of a lesser quality than beer have all combined to produce a dramatic reduction in the sales of CMB. By allowing us to compete on an equal basis with retail liquor dealers, SB 299 provides CMB retailers that opportunity to regain the share of the cereal malt product market they lost over the past several years.
We appreciate the opportunity to appear before the Committee in support of SB 299, and I will attempt to answer any questions the Committee may have.
EXPLANATION OF NEW SECTIONS IN SENATE BILL NO. 299
New Sec. 2. (Page 1) This section authorizes the governing body of a
city in which the sale of alcoholic liquor is authorized to adopt a
resolution providing
that the Cereal Malt Beverage Retailers’ Act shall be applicable in such
city. It provides for publication of the resolution, and the resolution shall
be effective following at least thirty (30) day following the date of last publication,
unless a petition requesting an election is filed in compliance with the section.
In that event, an election must be held to determine whether the resolution shall
take effect. This section also provides for the adoption of a similar resolution
by a board of county commissioners, with respect to any township in such county
in which alcoholic liquor may be sold. In subsection (f), this section also sets
forth the statues in the Kansas Liquor Control Act, the Club and Drinking Establishment
Act and the Kansas Cereal Malt Beverage Act which shall not apply to any city
or township in which the Cereal Malt Beverage Retailers’ Act is applicable.
Subsection (g) makes it clear that the keg registration act and the gallonage
tax are applicable to the new act.
New Sec.3. (Page 2) This section provides that when the Cereal malt Beverage Retailers’ Act becomes applicable in any city or township, the various licensees under the Kansas Liquor Control Act, the Club and Drinking Establishment Act and the cereal malt beverage statutes contained in K.S.A. 41-2701 et seq., shall be licensees for purposes of the Cereal Malt Beverage Retailers’ Act.
New Sec. 4. (Page 3) Subsection (a) of this section denominates sections 4 through 53 of SB 299 as the Cereal Malt Beverage Retailers’ Act. Subsection of (b) provides that, for purposes of the new act, K.S.A. 41-2701 et seq. shall be referenced as the Kansas Cereal Malt Beverage Act, and it also provides that any reference to the Kansas Liquor Control Act, the Club and Drinking Establishment Act or the Kansas Cereal malt Beverage Act shall be deemed a reference to those provision of such acts which remain applicable to any city or township in which the new act is made applicable. (See subsection (f) of new Sec. 2.)
New Sec. 5. (Page 3) This section contains substantially all of the definitions contained in K.S.A. 41-102, except that “cereal malt beverage” has been defined so as to increase the alcoholic content to not to exceed 5% alcohol by weight. In addition, several new definitions have been included, as well as pertinent definitions from K.S.A. 41-2701.
New Sec. 6. (Page 6) This section corresponds to K.S.A. 41-104, prohibiting various acts, unless they are authorized by the Cereal Malt Beverage Retailers’ Act of the Kansas Liquor Control Act. The provisions include prohibited acts involving cereal malt beverage.
New Sec. 7. (Page 6) This section corresponds to K.S.A. 41-208, by vesting essentially the same regulatory powers in the Director of ABC as are vested in the Director by K.S.A. 41-208. But New Sec. 7 extends such regulatory authority over cereal malt beverage and the Cereal Malt Beverage Retailers’ Act.
New Sec. 8. (Page 7) The Director’s functions and duties set forth in K.S.A. 41-209 are extended to the Cereal Malt Beverage Retailers’ Act.
New Sec. 9. (Page 8) This section corresponds to K.S.A. 41-210, and the power of the Director of ABC to propose rules and regulations for purposes of the Kansas Liquor Control Act has been extended to the Cereal Malt Beverage Retailers’ Act. The section also provides that, to the extent that previously adopted rules and regulations under the Kansas Liquor Control Act carry out and implement the provisions of the Cereal Malt Beverage Retailers’ Act, such rules and regulations shall be applicable to this new act.
New Sec. 10. (Page 8) This section corresponds to K.S.A. 41-211, and it sets forth the same purposes for rules and regulations adopted by the Secretary of Revenue to implement the Kansas Liquor Control Act, but includes cereal malt beverage within their scope,
New Sec. 11 (Page 10) This section defines what a beer distributor’s license shall allow under the Cereal malt Beverage Retailers’ Act. It is substantially comparable to K.S.A. 41-307, except that it includes provision applicable to the newly-defined cereal malt beverage in the Cereal Malt Beverage Retailers’ Act.
New Sec. 12. (Page 11) For purposes of the Cereal Malt Beverage Retailers’ Act, a “retailer” under the Kansas Liquor Control Act has been defined in New Sec. 5 as a “liquor retailer”. New Sec. 12 sets forth what a liquor retailer’s license will allow, and is substantially the same as the provision of K.S.A. 41-308, with the notable exception that it permits the retail sales of the newly defined cereal malt beverage, in addition, the section would permit a liquor retailers to sell soft drinks, mix and specified beverage-related, non-food items.
New Sec. 13. (Page 12) this section requires reports to the Director of ABC of manufacturers, distributors and microbreweries which sell any beer or cereal malt beverage to a beer distributor. Requirements of this section correspond to the requirements of K.S.A. 41-601.
New Sec. 14. (Page 12) Records required of manufacturers, distributors and microbreweries under the Cereal malt Beverage Retailers’ Act are the same as those required under the Kansas Liquor Control Act (41-602).
New Sec. 15. (Page 13) This section is comparable to K.S.A. 41-701 in setting forth limitations on various licensees under the Cereal malt Beverage Retailers’ Act.
New Sec. 16. (Page 14) The prohibitions on a retailer under the Kansas Liquor Control Act (41-708) with respect to alcoholic liquor, are applicable to liquor retailers under the Cereal Malt Beverage Retailers’ Act and include cereal malt beverage, we well as alcoholic liquor.
New Sec. 17. (Page 14) This section is comparable to K.S.A. 41-712 in setting forth the days and hours when alcoholic liquor and cereal malt beverage cannot be sold.
New Sec. 18. (Page 14) This section extends the prohibitions of K.S.A. 41-717 regarding alcoholic liquor to also include cereal malt beverage.
New Sec. 19. (Page 15) This section includes the provisions of 41-718 regarding alcoholic liquor, but also includes cereal malt beverage within its scope.
New Sec. 20. (Page 15) the restrictions on transportation of alcoholic liquor in K.S.A. 41-724 are applicable to the transportation of cereal malt beverage for purposes of the Cereal Malt Beverage Retailers’ Act.
New Sec. 21. (Page 15) The unlawful acts set forth in K.S.A. 41-725 regarding alcoholic liquor have been made applicable to cereal malt beverage under the Cereal Malt Beverage Retailers’ Act.
New Sec. 22. (Page 15) This section is substantially identical to K.S.A. 41-726, except that it includes cereal malt beverage within its scope.
New Sec. 23. (Page 15) The retail sale prohibitions on alcoholic liquor in K.S.A. 41-729 have been expanded to include cereal malt beverage.
New Sec. 24. (Page 16) This section is substantially the same as K.S.A. 41-805, except that it includes cereal malt beverage within its scope.
New Sec. 25. (Page 18) This section replicates the provision of K.S.A. 41-806 regarding pro-section of violations of the Kansas Liquor Control Act, but also includes violations regarding cereal malt beverage under the new act.
New Sec. 26. (Page 19) By this section, the provisions kf K.S.A. 41-901, imposing restrictions on manufacturing, importation and distribution of alcoholic liquor under the Kansas Liquor Control Act, have been modified to include cereal malt beverage, as defined under the Cereal Malt Beverage Retailers’ Act.
New Sec. 27. (Page 20) This section is comparable to K.S.A. 41-905, but also includes cereal malt beverage within the scope of its prohibitions.
New Sec. 28. (Page 21) This section includes provisions regarding the prosecution of violations of the Cereal Malt Beverage Retailers’ Act comparable to those set forth in the Kansas Liquor Control Act (41-1001).
New Sec.. 29. (Page 21) This section related to the prosecution of violations of the Cereal Malt Beverage Retailers’ Act, as well as the Kansas Liquor Control Act and the Club and Drinking Establishment Act. This section is comparable to K.S.A. 41-1002.
New Sec. 30. (Page 21) This section perpetuates the provisions of K.S.A. 41-1004, regarding the unlawful possess of a special tax stamp from the U.S. government authorizing the sale or manufacture of alcoholic liquor, and it includes cereal malt beverage for purposes of the new act.
New Sec. 31. (Page 21) This section incorporates the provisions of K.S.A. 41-1101 regarding the unlawful discrimination in sales, services or prices of alcoholic liquor and includes cereal malt beverage within its scope.
New Sec. 32. (Page 24) This section is substantially the same as K.S.A. 41-1102, except for the addition of cereal malt beverage.
New Sec. 33. (Page 25) The authority of the Director of ABC to sell alcoholic liquor at public or private sale pursuant to K.S.A. 41-1122 is expanded to include the sale of cereal malt beverage.
New Sec. 34. (Page 25) This section is comparable to K.S.A. 41-1123, regarding the custody of alcoholic liquor seized by the Director’s agents, but cereal malt beverage is included within the scope of this section.
New Sec. 35. (Page 25) The authority of a sheriff under K.S.A. 41-1125 to possess alcoholic liquor on which there has been levied execution, has been broadened to include cereal malt beverage.
New Sec. 36. (Page 25) The prohibition of the Club and Drinking Establishment Act (41-2604) regarding consumption of alcoholic liquor on licensed premises has been expanded to include cereal malt beverage.
New Sec. 37. (Page 26) Unlawful acts by a licensee or temporary permit holder under the Club and Drinking Establishment Act, with respect to the serving of dispensing of alcoholic liquor, has been expanded to include dispensing or serving of cereal malt beverage.
New Sec. 38. (Page 26) The authority of the Director of ABC to revoke or suspend any license under the Club and Drinking Establishment Act (41-2611) has been broadened by this section to include violations involving cereal malt beverage, as well as alcoholic liquor.
New Sec. 39. (Page 27) The hours for consuming and serving alcoholic liquor under the Club and Drinking Establishment Act (41-2614) has been perp0etuated by this section, with the addition of cereal malt beverage.
New Sec. 40. (Page 28) Subsections (a) and (b) correspond to the provisions of subsections (b) and (c) of K.S.A. 41-2632, but cereal malt beverage has been included within the scope of this section.
New Sec. 41. (Page 28) Except for the addition of cereal malt beverage, this section is identical to K.S.A. 41-2637.
New Sec. 42. (Page 28) Except for the addition of cereal malt beverage, this section is identical to K.S.A. 41-2641.
New Sec. 43. (Page 30) Except for the addition of cereal malt beverage, this section is identical to K.S.A. 41-2642.
New Sec. 44. (Page 31) Except for the addition of cereal malt beverage, this section is identical to K.S.A. 41-2643.
New Sec. 45. (Page 32) Except for the addition of cereal malt beverage and correction of the title of the Club and Drinking Establishment Act in subsection (h), this section is identical to K.S.A. 2004 Supp. 41-2645.
New Sec. 46. (Page 33) Except for the addition of cereal malt beverage and one grammatical correction in subsection (g), this section is identical to K.S.A. 2004 Supp. 41-2702.
New Sec. 47. (Page 35) The licensing procedure for a cereal malt beverage retailer under this section is substantially the same as the procedure prescribed by K.S.A. 2004 Supp. 41-2703.
New Sec. 48. (Page 36) This section corresponds to K.S.A. 41-2704, except
that the hours of the day when cereal malt beverage may be sold in the
original and unopened container have been established at the same hours
when a retailer
under
the Kansas Liquor Control Act may sell alcoholic liquor. In addition,
a cereal malt beverage retailer is prohibited from selling cereal malt
beverage
at
less
than the acquisition cost without permission from the Director of ABC,
and the criteria for the granting of the Director’s permission
also are set forth.
New Sec. 49. (Page 38) The only substantive difference between this section
and K.S.A.. 41-2705 is the fact that the retailer under that statue is
referred to
as a cereal malt beverage retailer under the Cereal Malt Beverage Retailers’ Act.
New Sec. 50. (Page 38) Other than the reference to cereal malt beverage retailer, rather than the term retailer, this section is substantially the same as K.S.A. 41-2707.
New Sec. 51. (Page 38) Other than the new terminology of cereal malt beverage retailer rather than retailer and omission of subsection (b) of K.S.A. 2004 Supp. 41-2708, this section is substantially the same as the current statute.
New Sec. 52. (Page 39) The enforcement of the Cereal Malt Beverage Retailers’ Act by local authorities is provided by this section. It is comparable to K.S.A. 41-2709.
New Sec. 53. (Page 39) This is the last section of the Cereal Malt Beverage Retailers’ Act. Except for the change in terminology from retailer to cereal malt beverage retailer and the elimination of subsection (g) of K.S.A. 41-2722, the new section is substantially the same as the existing statute.
New Sec. 56 (Page 42) The provisions of this section apply to cities and counties in which alcoholic liquor may not be sold and in which cereal malt beverage containing not more than 3.2% alcohol by weight is the only alcoholic beverage that can be sold. This section authorizes the governing body of any such city to adopt a resolution providing that, for the purposes of K.S.A. 41-2701 et seq., the definition of cereal malt beverage shall be changed so as to increase the alcoholic content from 3.2% to 5% by weight. The section provides for a protest petition and, if the petition is sufficient, an election to determine whether such resolution shall become effective. With respect to any such county, the board of county commissioners is authorized to adopt the same resolution.
New Sec. 57. (Page 43) Because of the difference in the definitions of cereal malt beverage in the Cereal Malt Beverage Retailers’ Act and K.S.A. 79-4101, the sales of cereal malt beverage under the Cereal Malt Beverage Retailers’ Act are exempted from the liquor enforcement tax provided by K.S.A. 79-4101, et seq. However, this new section imposes essentially the same tax on sales of cereal malt beverage to consumers and on sales of cereal malt beverage by distributors to clubs, drinking establishments, caterers and temporary permit holders, pursuant to the Cereal Malt Beverage Retailers’ Act.
New Sec. 58. (Page 43) Because of the definitional differences between cereal malt beverage in the Cereal Malt Beverage Retailers’ Act and in K.S.A. 79-41a02, the sales of cereal malt beverage by the drink under the Cereal Malt Beverage Retailers’ Act are exempt from the Liquor Drink Tax provided by K.S.A. 79-41a01 et seq. However, New Section 58 imposes essentially the same tax on sales of cereal malt beverage fro consumption on the premises under the Cereal Malt Beverage Retailers’ Act.
New Sec. 59. (Page 44) This section makes all retail sales of cereal malt beverage under the Cereal Malt Beverage Retailers’ Act subject to state and local sales taxes.
Appendix A
Comparison of Strong Beer and Cereal Malt Beverage by Alcohol Content
RESULTS OF EXAMINATION
By K.B.I. LAB
| %Ethonal (Alcohol ) by Weight | |
| 1 - One 12 oz. can Bud Light (strong) | 3.5 |
| 2 - One 12 oz. can Bud Light (3.2) | 2.8 |
| 3 - One 12 oz. can Busch (strong) | 3.9 |
| 4 - One 12 oz. can Busch (3.2) | 3.2 |
| 5 - One 12 oz. can Budweiser (strong) | 3.9 |
| 6 - One 12 oz. can Budweiser (3.2) | 3.1 |
| 7 - One 12 oz. can Coors (strong) | 3.8 |
| 8 - One 12 oz. can Coors (3.2) | 3.2 |
| 9 - One 12 oz. bottle Miller (strong) | 3.8 |
| 10 - One 12 oz. bottle Miller (3.2) | 3.1 |
| 11 - One 12 oz. bottle Michelob (strong) | 4.1 |
| 12- One 12 oz. bottle Michelob (3.2) | 3.2 |
| 13 - One 12 oz. can Old Milwaukee (strong | 3.9 |
| 14 - One 12 oz. bottle Wiedemann (strong) | 3.7 |
| 15 - One 16 oz. can Colt 45 (strong) | 4.1 |
| 16 – One 12 oz. bottle Corona (Mexican, strong) | 3.6 |
| 17 - One 7 oz. bottle Little King (3.2) | 3.2 |
K.S.A. 41-102 (C) defines “beer” when it meaning is not enlarged,
modified, or limited by other words, mans a beverage containing more than 3.2%
alcohol by weight, obtained by alcoholic fermentation of an infusion or concoction
of barley, or other grain, malt and hops in water and includes beer, ale, stout,
lager beer, porter and similar beverages having such alcoholic content.
K.S.A 41-2701 (a) defines “Cereal Malt Beverage” as any fermented
but undistilled liquor brewed or made from malt or a mixture of malt or malt
substitute, but doe not include any such liquor which is more than three and
two-tenths percent (3.2%) alcohol by weight.
Attachment C
Alcohol Content – Selected Beers
Product |
Alcohol% CMB |
By Weight |
Additional Alcohol Per 12 Oz. Can (Strong vs CMB) |
| Budweiser | 3.22 | 3.96 | 0.098 oz |
| Coors | 3.15 | 3.56 | 0.049 oz |
| Miller | 3.01 | 3.6 | 0.071 oz |
| Bud Light | 3.13 | 3.33 | 0.024 oz |
| Coors Light | 3.14 | 3.29 | 0.018 oz |
| Miller Lite | 3.05 | 3.22 | 0.020 oz |
| Colt 45 Malt Liquor | N/A | 4.58 | N/A |
| King Cobra Malt Liquor | N/A | 4.81 | N/A |
| Schlitz Malt Liquor | N/A | 4.87 | N/A |
| Corona Extra Beer | N/A | 3.58 | N/A |
| Fosters Lager | N/A | 4.22 | N/A |
| Heineken Lager | 2.97 | 4.09 | 0.134 oz |
| Molson Canadian Beer | N/A | 3.87 | N/A |
Analysis Accuracy ± .05%
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