Powdered alcohol is a form of alcohol that has been absorbed into a powdery substance. While not a new concept, the recent re-emergence of powdered alcohol, triggered in part by one company that has branded it as "Palcohol," has generated controversy over the past few years, leading to questions as to whether it is legal to possess or sell it.
California is one of many states that have banned the substance. Being caught possessing, distributing, or selling powdered alcohol is an infraction that triggers a fine of not more than $500.
Powdered alcohol is defined as an alcohol prepared or sold in a powder or crystalline form that is used for human consumption in that form or reconstituted as an alcoholic beverage when mixed with water or any other liquid.
The Alcoholic Beverage Control Act contains various provisions regulating the application for, issuance, suspension, and conditions imposed upon alcoholic beverage licenses by the Department of Alcoholic Beverage Control.
That act imposes additional regulations on the sale of alcoholic beverages and creates penalties for violations of those regulations. A California bill requires the department to revoke the license of any licensee who manufactures, distributes, or sells powdered alcohol.
This bill prohibits the possession, purchase, sale, offer for sale, distribution, manufacture, or use of powdered alcohol and makes the specified violation of these provisions punishable as an infraction.
Federal Law grants states the authority to establish alcoholic beverage laws and administrative structures to regulate the sale and distribution of alcoholic beverages.
What Is Powdered Alcohol?
Powdered alcohol (sometimes also called "dry alcohol" or "crystalline alcohol") is a molecular encapsulation of alcohol in a powder form. This innovative product allows consumers to mix the powder with water or another liquid to create an alcoholic beverage.
It can also be taken orally as a pill. The concept behind powdered alcohol is convenience and portability, making it easier to transport than liquid alcohol.
When mixed with water or another liquid, it reconstitutes to form an alcoholic beverage. This innovation aims to provide a more convenient and lightweight alternative to traditional liquid alcohol, particularly for outdoor enthusiasts and casual drinkers. Under the Palcohol brand, one packet is equivalent to one shot of alcohol.
The production process involves encapsulating ethyl alcohol within cyclodextrins, a type of carbohydrate. The result is a fine powder that can easily be transported and stored without the risk of spills.
As the name suggests, powdered alcohol is a powder that, when mixed with water or any other liquid, becomes an alcoholic beverage. Small amounts of liquid alcohol are enclosed in cyclodextrins, which are small sugar rings.
The sugar dissolves once water or any other liquid is added, and the alcohol is released into the drink. Powdered alcohol gained media attention in the United States when, in April 2014, the U.S. Alcohol and Tobacco Tax and Trade Bureau (TBB) approved labels for a product called Palcohol.
While this might sound like a novel concept, it raises significant legal and safety concerns, particularly regarding regulation and consumption.
Critics of powdered alcohol argue that this type of product, while innovative, could be much easier to over-consume, conceal, and be acquired by minors. They point to the potential for misuse, such as adding powdered alcohol to liquid alcohol to produce a greater concentration than intended.
In addition, critics point to the ease with which people, including youths, could bring alcohol to places where it is banned, such as sporting events, movie theaters, parks, and schools.
What is the Legal Status of Powdered Alcohol?
At the federal level, powdered alcohol has had a contentious history. Initially, the Alcohol and Tobacco Tax and Trade Bureau (TTB) approved Palcohol for sale in 2014. However, the approval was rescinded due to labeling inconsistencies and public concern about potential misuse. After addressing these issues, the TTB once again approved it in 2015.
Despite federal approval, states maintain the authority to regulate or ban the sale and possession of alcohol products within their jurisdictions. As of 2023, Palcohol is prohibited in 24 states, with nine more states considering legislation to ban it.
Is Powdered Alcohol Legal in California?
No, it's not. In 2016, California passed Assembly Bill 1554, which categorically prohibits the sale, manufacture, and possession of powdered alcohol within the state.
The bill defines powdered alcohol as "any powder or crystalline substance containing alcohol produced for human consumption." This ban is now codified in California Business and Professions Code 25623 (BPC), which makes it illegal to possess, manufacture, distribute, sell, or use any form of powdered alcohol.
There are penalties for possessing or selling powdered alcohol. Violating BPC 25623 is an infraction. If you're convicted of possessing, distributing, selling, or intending to sell powdered alcohol, you can be fined up to $500 per incident.
In addition, if you are a licensed seller of alcohol in California, your liquor license will be suspended or revoked if you sell or distribute powdered alcohol.
What are the Defenses?
Suppose you are facing charges of powdered alcohol possession or consumption. In that case, a skilled California criminal defense attorney may employ several strategies to counter the charges, as discussed below.
Lack of Knowledge
Your attorney may argue that you were unaware that the substance in your possession was powdered alcohol. While ignorance of the law regarding the legality of powdered alcohol is generally not a valid defense, demonstrating that you were misled by packaging, labeling, or vendor representations might mitigate penalties.
Illegal Search and Seizure
The Fourth Amendment to the U.S. Constitution protects citizens against unreasonable searches and seizures. Suppose your attorney can demonstrate that law enforcement violated your constitutional rights by searching without probable cause or obtaining evidence through coercion. In that case, the evidence against you may be suppressed, and your charges may be dismissed.
Involuntary Intoxication
If you unknowingly consumed powdered alcohol and were subsequently arrested for public intoxication, an involuntary intoxication defense may apply. This defense asserts that you did not intend to become intoxicated and could not have foreseen the effects of consuming the substance.
Entrapment
Entrapment can be a viable defense if it can be shown that law enforcement officers induced you to commit an offense you would not otherwise have committed. This defense requires proving that the idea and impetus for the illegal act originated with the authorities rather than the defendant.
Contact our law firm for more information. Eisner Gorin LLP has two office locations in Los Angeles County.
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