Problems with the "Four Loko" ban

Earlier this month, Massachusetts banned the sale of caffeinated alcoholic beverages and malt beverages that contain herbal or chemical stimulants (the most well-known beverage being "Four Loko").

We're not connoisseurs of these drinks and we acknowledge their harmfulness. So, we have no particular problem with their ban. But, we think it's worth noting a very interesting aspect of the ban that is being overlooked.

What actually happened here is the Alcoholic Beverages Control Commission (which is overseen by the state Treasurer) issued an emergency regulation to ban the sale of these drinks.

We think this is a poor precedent because this sort of policy ought to be set by the Legislature, which is in charge of making laws regarding the sale of alcohol (most of which are set forth in Chapter 138 of the General Laws).

There's a reason for that. Theoretically, the Legislature is supposed to be better-equipped than a constitutional officer to gather information about policy decisions, factor public input, and debate the issue. But, that didn't happen here.

Let's face it. There's no "emergency" behind these regulations; the "emergency" is that no one planned ahead for these beverages to be sold here and to lead to an under-age drinking problem. The Legislature is not known for its swift action addressing problems, but had there been a clear and present danger to public health, the Legislature could have issued a similar ban in an afternoon.

In addition, liquor store owners already faced with the complexity of complying with new and changing tax laws, now have to deal with an ever-changing list of banned products set forth in regulation (the regulation says new products can be added to the ban), and the potential penalty of having their license suspended.

At the end of the day, public safety is paramount. Having a ban in place is better than not having one. So, what's the danger here? The problem is a slippery slope of state law being made by people other than the Legislature, whether it's a constitutional officer, an administrative agency, or a court. The place for making laws is in the Legislature. And regardless of your opinion of our particular Legislature and what confidence you have in its abilities, we think it's still important to respect boundaries and keep things in their proper place.

Whatever the case, the ABCC's emergency ban is in effect for only 90 days. It will be interesting to see what the Legislature does after that time, or if a follow-up regulation will be issued.