LINCOLN, Neb.—A judge will likely decide whether popular alcoholic drinks such as Mike’s Hard Lemonade and Smirnoff Ice are considered beer or hard liquor in Nebraska.
A mother and three Nebraska groups that fight underage drinking filed a lawsuit on Wednesday challenging the state Liquor Control Commission’s decision to allow flavored alcoholic beverages, or so-called “alcopops” to be classified as beer instead of hard liquor. Classifying flavored malt beverages, or “alcopops” could ban them from beer-only stores, such as minimarkets, and increase the state taxes assessed from 31 cents a gallon to $3.75 a gallon.
Attorney General Jon Bruning and Gov. Dave Heineman signed off on the rule last month.
“From a legal standpoint, Nebraska law is clear,” said Vince Powers, attorney for the plaintiffs. “The law indicates that if any alcohol is derived from distillation, it should be classified and regulated as such.”
Flavored alcoholic beverages start out as brewed malt beverages but are flavored with distilled spirits.
Project Extra Mile, one of the plaintiffs in the suit, has argued that the beer classification makes the drinks popular with underage drinkers by keeping them on more store shelves and at lower prices. Assuming the higher taxes are passed along to consumers, that would raise the shelf prices considerably.
Three years ago, Bruning’s office released an opinion saying the state statute regarding classification of the liquor was ambiguous. The opinion freed the liquor commission to classify flavored alcoholic beverages as it saw fit.
The rule change being challenged requires that the state classify alcoholic beverages the same way as the federal government. The federal government classifies the so-called alcopops as beer.
Liquor Control Commission officials have said they have followed federal guidelines for decades and only considered cementing the practice into state rules and regulations after a Lancaster County District Court decision early last year.
The court, acting on a lawsuit filed by Project Extra Mile, ruled that that the commission lacked the rules and regulations to justify basing decisions on the federal government’s classifications.
The lawsuit filed Wednesday alleges that the federal classification conflicts with the Nebraska Liquor Control Act.
Bruning’s spokeswoman, Leah Bucco-White, said the state Liquor Control Commission “has broad authority to classify alcohol.”
“The rule was in the scope of that authority, and we don’t believe (the federal classification) conflicts with the Liquor Control Act.”
Maine and Utah are the only two states where the drinks are classified as distilled spirits, according to Jim Mosher, a California-based consultant on alcohol policy who believes the beverages should be considered distilled spirits.
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