Alcoholic Beverages Control Commission freezes sale and distribution of alcoholic ice cream with new regulation

By Mary Ellen Shoup contact

- Last updated on GMT

Massachusetts ice cream manufacturers and retailers can no longer scoop out alcoholic ice cream as easily without clearance from the the Alcohol and Tobacco Tax and Trade Bureau.
Massachusetts ice cream manufacturers and retailers can no longer scoop out alcoholic ice cream as easily without clearance from the the Alcohol and Tobacco Tax and Trade Bureau.

Related tags: Ice cream, Alcoholic beverage

The Alcoholic Beverages Control Commission (ABCC) recently issued an advisory restricting the sale and distribution of alcohol-infused ice cream in the state of Massachusetts, in response to the increase in production and sales of boozy ice cream.

According to the International Dairy Foods Association (IDFA), Americans are looking for an indulgence when they eat ice cream, making the combination of premium ice cream and different types of alcohol a natural, popular choice among adult consumers.

However, Kris Foster, general counsel of ABCC, said that rising sales of alcoholic ice cream have also prompted the agency to set down a clearly-defined regulation for local licensing boards.  

The new restriction requires that any manufacturer who uses wine, beer, or spirits in their ice cream file for a federal exemption, regardless of the amount of alcohol used. Alcohol levels used in the specialty ice cream category can vary between nearly none and almost 5% (roughly the same amount as some varieties of beer).

“No businesses (such as ice cream parlors and food trucks) can lawfully make and/or sell alcohol-infused ice cream without producing a written classification from the Alcohol and Tobacco Tax and Trade Bureau (TTB) exempting each alcohol-infused ice cream product it sells,”​ the advisory document stated.

Alcoholic ice cream ≠ alcoholic beverage

The ABCC defines an alcoholic beverage as “any liquid intended for human consumption as a beverage and containing one half of one percent or more of alcohol by volume at 60F.”

Because ice cream containing alcohol is not a liquid intended for consumption as a beverage, it would not be considered an alcoholic beverage. Any businesses with licenses to either import, distribute, or sell alcoholic beverages are not lawfully allowed to import, sell, or manufacture ice cream with alcoholic content. Any such action is considered a legal violation and the retailer would be subject to sanctions.

The only exception to this prohibition is where the TTB has classified in writing that a particular product is a “non-beverage product.”​ This TTB classification is specific to each individual product a business manufactures, and not a business’ entire line of products.

What this means for retailers is that a retailer cannot lawfully purchase alcohol-infused ice cream from a wholesaler because it is both unlawful for a wholesaler to sell alcohol-infused ice cream, and it is also unlawful for retailers to sell it to the public without the appropriate TTB label/permit classifying it as an approved non-beverage product.

One exception to this requirement are restaurants with liquor licenses who serve their own alcohol-infused ice cream desserts such as “adult milkshakes”​ or bourbon vanilla ice cream.

Is intoxication a concern?

Ice cream naturally retains a higher percentage of alcohol content compared to other food products where alcohol is heated up and cooked away. Meaning many alcohol-infused ice cream products have an actual ABV with potential of intoxication effects.

Liquor-infused ice cream manufacturer Tipsy Scoop, which is located in New York City but distributes to retail locations in Boston, requires its customers to be over the age of 21 before consuming its products like its Spiked S’Mores and Rum Root Beer Float flavors. 

However, it would take a lot of ice cream to achieve illegal levels of intoxication (i.e. above .08). According to Ralph Sacramone, executive director of ABCC, it would take eating more than four pints of alcoholic ice cream in most cases to become overly intoxicated. 

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