Hon. Coke B. Stevenson, Jr.
Administrator
Texas Liquor Control Board
Austin, Texas               Opinion No. V-1542.
                           Re: Legality of Advertlse-
                               ment and Sale by Manu-
                               facturer of rum flavor
                               ed ice cream and egg nog
                               containingmore than l/2
Dear Mr. Stevenson:            of 1% of alcohol by volume.
          You have asked for the opinion of this office with
reference to the legality, under the provis1011sof the
Texas Liquor Control Act, of a manufactureradvertising
and selling frozen egg nog which contains more than 1/2
of 1% of alcohol by volume and 'rum flavored" Ice cream
containingmore than l/2 of l$ of alcohol by volume. We



                   If
quote from your opinion request as follows:

          "It Is our opinion that 'egg nag' (frosen
     or otherwise)    it contains more than l/2 of
     1% of alcohol by volume cannot be eold In
     Texas unless the seller is the holder of a
     permit authorizing such sales, since it is a
     drlnk.
          "It Is further our opinion that Ice
     cream Is a food, which is not contemplatedto
     be a beverage. Ice cream to be eaten and not
     drunk, even though it is rum flavored and contains
     more than l/2 of 1% of alcohol by volume, would
     not be an 'alcoholicbeverage.'
          'We would appreciateyour valued opinion
     as to whether or not egg nag, which was frozen
     and which contained more than l/2 of 1% of alcohol
     by volume, could be advertised and sold by Cabell's,
     Inc.; also, whether or not It could advertise and
     sell 'yum flavored' Ice cream."
Hon. Coke R. Stevenson, Jr., page 2 (V-1542).




          Article 666-3-a(1), Vernon's Penal Code, pro-
vides as follows:
          "lAlcohollcBeverage' shall mean alcohol
     and any beverage containingmore than one-half
     of one percent (l/2 of 1s) of alcohol by volume
     which 1s capable of use for beverage purposes,
     either alone or when diluted."

          Article'667-2,Vernon's Penal Code, provfdes in
part, that:
          "It shall be unlawful to manufacture,sell,
     barter, or exchange within this State any bever-
     age containingalcohol In excess of one-half of
     one percent by volume and not more than four (4)
     percent of alcohol by weight except beer."

          It is clear that the manufacture or sale of
any type of alcoholic beverage Is prohibited In Texas
except by the holders of proper permits or llcenaea
obtained by due process of law. With reference to your
Inquiry concerningthe manufacture and sale of egg
nog containingmore than l/2 of 1% of alcohol by volume,
It Is our opinion that zuch sale and manufacturewould
be unlawful. "Egg w3     suah as described la your request,
without question, is a'"beverage"within the meaning
of the Texas Liquor Control Act. The word "beverage,"In
cormnonmeaning, signifies a liquid designed for drlnklrg
by human beinga. The word connotes something to be
drunk. Burnstein v. U. S. 55 F.2d 599, 603 (C.C.A. 9th
19321. A product must be *capable for use for beverage
purpoaea, either alone or when diluted," to be within
the prohibition set out In the Liquor Control Act.

          The expreslslon"capable for use TOP beverage
        , either alone or when diluted," la quite broad
purposes,
and must Include within Its purview those llqulda, which,
although they may not be consideredae beverages, are
yet capable of being so used. The sale of an alcoholic
liquid not capable of use as a beverage would constitute
no violation of the law. McChrlaty v. State, 133 S.W.2d
Hon. Coke R. Stevenson, Jr., page 3 (V-1542).




?;6   (Tex.   Crlm.   1939);   PetteL-.Xs-:te,1.62 Z3.bJ.M $163
                               .~,__
  'ex. Grim. 1942).

          In addition to the above egg nog is defined
in Webster's Dictionary as "a drink consistingof eggs
beaten up with sugar, milk, an-ometimes,    wine."

          It Is our opinion that the Legislature ln-
tended the word "beverage" to Include & product such as
the egg nog product about which you inquired. Walker-
                                              ----
Hill Co. v. United States, 162 F.2d 259 (C.C.A. 7th 1947).

          Your quebtion as to rum flavored Ice cream
calls for further Inquiry. Whether a given product Is
"capable of being used as a beverage" so that Its manu-
facture landsale constitutesa violation of the Texas
Liquor Control Act depends upon the facts of the partl-
cular case and Is not determined by the name given to
the product. Ice cream would not be classed as a "beverage"
within the commonly accepted meaning.and use of the term.
Ice cream Itself Is not a drink or something to be drunk.
However, It may be "capable of use for beverage purposes,
either alone or when diluted," as when melted or used
for the making of milk shakes, and may come within the
purview of Article 666-3-a(1),Vernon's Penal Code and
Article 667-2, Vernon's Penal Code. A "beverage"may
be a food product although a particular food product
may not be a "beverage." The Intention of the Legislature
as to whether a product such as Ice cream with more than
l/2 of 1% of alcohol by volume can be lawfully manufactur-
ed and sold without a permit or license is controlling.
Certainly the Legislaturedid not Intend that a subter-
fuge be perpetratedby the use of an illegal amount of
alcohol In a particular product which Is to be sold to
the public. Assuming thht no subterfuge Is Involved,
it Is our conclusion that Ice cream la not a "beverage"
within the terms of the Texas Liquor Control Act. It Is
a "food product," however, within the terms of Article
666-15(11),Vernon's Penal Code, and It Is specifically
required that an IndustrialPermit must be secured before
the manufacture aridsale of such proQuOt would be lawful.
Hon. Coke R. Stevenson, Jr., page 4 (V-1542).




                         S-Y

          Egg nog Is a "beverage"within the terms;o?
the Texas Liquor Control Act and It cannot be manu-,
factured or sold without a permit If It contalns more
than l/2 of 1% of alcohol by volume. "Ice cream" is
not a "beverage"within the terms of the Liquor Control
Act and may be manufaEtiiredor sold when It contalna
more than l/2 of l$ of alcohol by volume without any
permit other than an Industrialpermit provided there is
no subterfuge Involved.

                                  Yours very truly,
APPROVED:
                                    PRICE DANIEL
William S. Lott                   Attorney General


                                  BY
State Mfalrs Division
E. Jacobson
Executive Assistant
Charles D. titheus..
First Assistant


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