Singh v Victoria Park Supermarket Limited [2009] NZLLA 1250 (11 November 2009)

Last Updated: 29 January 2012

Decision No. PH 1250/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension of off-licence number 007/OFF/094/2009 issued to VICTORIA PARK SUPERMARKET LIMITED in respect of premises situated at 2 College Hill, Freemans Bay, Auckland known as “Victoria Park New World”

BETWEEN RASHPAL SINGH

(Police Officer of Auckland)

Applicant

AND VICTORIA PARK SUPERMARKET LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 21 October 2009

APPEARANCES

Constable B J Suckling – NZ Police – applicant
Mr B D Casserly – on behalf of respondent
Miss A L Marsh – Auckland District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is a test case brought by the Police as to whether it is legal for a supermarket to sell a product known as “Angostura aromatic bitters” pursuant to its off-licence. The case has taken the form of an application for the suspension of an off-licence in respect of licensed premises known as “Victoria Park New World”, situated in Freemans Bay in Auckland. The application was argued on the basis that both parties are seeking clarification on the issue. Accordingly no sanction was called for in the event that the company was found to be in breach of the relevant condition.

• [2] The supermarket licence is held by Victoria Park Supermarket Limited (hereafter called the company). Pursuant to condition (c) of the licence, and to s.37(3) and (3A) of the Act, the company is permitted only to sell the following liquor:
  • [a] Wine that conforms to the standard prescribed by regulation 219 of the Food Regulations 1984 (SR 1984/262), or any other standard that may be prescribed pursuant to the Food Act 1981 in substitution for that standard; and
• [b] Sparkling wine that conforms to the standard prescribed by regulation 220 of those regulations, or any other standard that may be prescribed pursuant to the Food Act 1981 in substitution for that standard; and
• [c] Fruit wine that conforms to the standard prescribed by regulation 226 of those regulations, or any other standard that may be prescribed pursuant to the Food Act 1981 in substitution for that standard; and
• [d] Sparkling fruit wine that conforms to the standard prescribed by regulation 227 of those regulations, or any other standard that may be prescribed pursuant to the Food Act 1981 in substitution for that standard; and
• [e] Mead that conforms to the standard prescribed by regulation 226 of those regulations, or any other standard that may be prescribed pursuant to the Food Act 1981 in substitution for that standard; and
• [f] Beer that conforms to the standard prescribed by regulation 218 of those regulations, or any other standards that may be set by regulations made under the Food Act 1981 or by food standards issued under that Act, in substitution for that standard;
• [g] Any food condiment containing liquor if the food condiment has been –
  1. (a) prepared for culinary purposes; and

2. (b) rendered unsuitable for drinking.

[3] The last provision was inserted by an amendment to the Sale of Liquor Act in 2004. The amendment possibly resulted from our decision in Tai Ping Trading - Mt Roskill Co. Limited LLA PH 902/2003 in which we were asked to decide whether recent changes to food standards under the Food Act 1981, permitted groceries and supermarkets to sell Asian cooking wines and grain based wines. We held that despite changes to food standards, such items could not be sold.

• [4] The amendment to the Act then followed. The effect of the amendment was to allow supermarkets and grocery stores (particularly Asian businesses) to sell cooking wines that had an alcohol content of over 15 percent alcohol by volume, and which, because of their salt content, had been rendered unsuitable for drinking.
• [5] Section 37 of the Act is effectively out of date because the Food Regulations are no longer in force. They have been superseded by the Australia New Zealand Food Standards Code (FSC) which is incorporated into New Zealand Law via the New Zealand (Australia New Zealand Food Standards Code) Food Standards 2002 issued pursuant to s.11 of the Food Act 1981.
• [6] The ground for the present application is that the licensed premises had been conducted in breach of condition (c) of the licence. This condition is referred to above. The particulars in support of the allegation were:
  • [a] That the company had been selling “Angostura aromatic bitters” in the supermarket; and
• [b] That the product contained 44.7 percent alcohol by volume; and
• [c] That the product was used to enhance flavour in soft drinks, cocktails and other alcoholic beverages; and
• [d] It was accepted that the product could also be used to flavour soups, gravies, fish, and meat.

[7] Mr B D Casserly is the Sales and Operations Manager in charge of liquor for Foodstuffs (Auckland) Limited. He appeared on the company’s behalf. He confirmed that the company had received advice from a Licensing Inspector earlier in the year that the sale of “Angostura aromatic bitters” appeared to be in breach of the off-licence. As a consequence the product was immediately recalled from all supermarkets under the “Foodstuffs” umbrella. Subject to its appellant rights under the Act, Mr Casserly advised that the company would abide by our decision.

The Application

[8] Constable B J Suckling is a Police Alcohol Harm Reduction Officer. She argued that because of its high alcohol content, “Angostura aromatic bitters” was in the category of a spirit or liqueur, and should be sold from bottle stores where the products had traditionally been displayed for sale. She produced copies of 14 pages of cocktails, which had been downloaded from the internet where the product is added to alcoholic and non-alcoholic cocktails. She had also been able to download six pages of food dishes where the product is also used as an ingredient. It is clear that “Angostura aromatic bitters” gives flavour intensity to a wide variety of everyday food and drink recipes.

• [9] Constable Suckling also discovered a history of “Bitters” in the Wikipedia web site. Some of the comments included the following:

“Angostura bitters was first compounded in Venezuela in 1824 by a German physician, who intended it as a remedy for stomach maladies. It was exported to England and to Trinidad, where it came to be used in a number of cocktails, following its medicinal use by the Royal Navy in Pink Gin. Angostura and similar gentian bitters can be of some value for settling mild cases of nausea. It is used to stimulate the appetite, either for food or cocktails.”

[10] Constable Suckling produced a bottle of the product that had kindly been supplied by the national importer. Its label states that the bottle contains 200 millilitres and is a product of Trinidad and Tobago. The contents are described as a skilfully blended aromatic preparation of gentian, in combination with a variety of vegetable colouring matter that has been made with the same ingredients since 1824. The ingredients are said to be water, alcohol, spices, natural aromas, sugars, colorant: Caramel E 150a. The label states 44.7 percent alcohol by volume.

• [11] Also on the label appear these words:

“ANGOSTURA aromatic bitters was first made in 1824 by Dr J.G.B. Siergert in the town of Angostura, Venezuela. Angostura aromatic bitters may be distinguished from all other aromatic bitters by its fine flavour and aromatic odour. At the principal International Exhibitions it has received the highest recognition. Because of its delightful flavour and aroma it has become extremely popular for use in soft drinks, cocktails and other alcoholic beverages. It also imparts an exquisite flavour to soups, salads, vegetables, gravies, fish, meat, fruit-juices, grapefruit, mixed cut-fruits, stewed prunes, stewed figs, preserved fruits, jellies, sherbets, water-ices, ice-cream, sauces for puddings, hard sauces, plum pudding, mince and fruit pies, apple sauce and all similar desserts, regulating the quantity according to taste.”

[12] Mr B D Casserly argued that the product was highly concentrated and bitter, and was therefore rendered to be unsuitable for drinking. There is a droplet type pourer that restricts the flow to very small measures. He contended that the product could be categorised as a food condiment, particularly as the NZ Customs Service had classified the product for tariff purposes, under sauces and preparations mixed seasoning. Mr Casserly did not think that the product was suitable for drinking on its own, because of its high alcohol volume and bitter taste.

• [13] Mr Casserly stated that the company had records indicating that it had been selling the product since at least March 2004. It was listed in the system as a cooking wine, although it had a “liquor identification flag”. In other words when it is scanned, the checkout computer will require supervisor approval before it can be sold. Its recommended placement in the store is in the baking section with essences. Mr Casserly confirmed that the company had required the importer to confirm that the products met all food standard requirements.
• [14] Mr A G Dennis is the managing director of the importing company that imports the product into New Zealand. He acknowledged that until about 2004, the product had traditionally been regarded as an item to be sold through bottle stores. However, he stated that as its use for food preparation had grown, there had been a marketing shift. At the same time the basis of the tariff imposed by the Customs Service had changed from an alcohol to a food based category. He noted that “Angostura aromatic bitters” was an ingredient in the popular “Lemon Lime and Bitters” soft drink, without creating any significant alcohol content.

The Authority’s Decision and Reasons

[15] Liquor is defined in the Act as any fermented, distilled or spirituous liquor (including spirits, wine, ale, beer, port, honey mead, stout, cider and perry) that is found on analysis to contain 1.15 percent or more alcohol by volume. It seems clear therefore that “Angostura aromatic bitters” is liquor. While it may not be fermented or distilled as per the definition, it appears to be spirituous liquor.

• [16] If the product is liquor then it can only be sold to the public pursuant to a licence (see s.6(1) of the Act). If the off-licence is a supermarket or grocery style licence then only certain types of liquor can be sold. When s.37 of the Act was originally passed, supermarkets and groceries were only allowed to sell wine (including sparkling wine). It was the Food Amendment Act in 1996 that added fruit wine, sparkling fruit wine and mead. Finally the Sale of Liquor Amendment Act in 1999 added beer.
• [17] A study of the various Food Regulations does not assist the company. The product in question could not be categorised as wine or fruit wine or mead or beer. We note that at any event wine, sparkling wine, fruit wine, sparkling fruit wine and mead that is sold in an off-licence must not contain more than 15 percent alcohol by volume at 20 degrees (see Reg.20(2) – Food (Safety) Regulations 2002).
• [18] Accordingly, the only way that “Angostura aromatic bitters” can be sold pursuant to a supermarket or grocery style licence is because it is authorised by the 2004 amendment. In other words it is a food condiment containing liquor that has been prepared for culinary purposes and rendered unsuitable for drinking.
• [19] According to the New Shorter Oxford English Dictionary, a condiment is a substance used to give relish to food such as seasoning. Given a generous interpretation of the product’s qualities, “Angostura aromatic bitters” could be described as a condiment. However, we do not accept that the product was prepared for culinary purposes. The results of our research are that the product was initially prepared for medicinal purposes, but that over the years it has been become primarily regarded as a flavour enhancer for drinks. Over more recent times it has also become accepted as a flavour enhancer for food. In summary, although the product is used to add flavour to food, we do not accept that it was prepared for culinary (or cooking) purposes.
• [20] However, the strongest argument against its introduction (or re-introduction) onto supermarket and/or grocery shelves, is that the product has not been rendered unsuitable for drinking. According to the dictionary referred to above, to render something is to cause it to be or become, or make of a certain nature.
• [21] There is nothing in the material to suggest that the manufacturers have deliberately caused the product to become unsuitable to drink. Normally with Asian cooking wines, this rendering takes place by the addition of salt. In this case, the only qualities that make this product unsuitable to drink, are the high alcohol content, and the bitter taste. On the other hand these qualities are designed to enhance the drinking process, and to give greater pleasure to the consumer. The only barrier to consumption is in the high alcohol volume of the product.
• [22] The result is that in our opinion, “Angostura aromatic bitters” does not sit naturally as a food condiment that one automatically associates with the preparation of food. It continues to retain its historic association with “pink gin” as well as adding an extra “zing” to other drinks. The product has yet to reach a stage of common acceptance as a condiment. In our view, the fact that “Angostura aromatic bitters” can be used for dual purposes (food and drink) is insufficient to bring it into the limited categories of alcohol products that may be sold by a supermarket or groceries.
• [23] Accordingly, we rule that while the product is being sold in any grocery or supermarket style off-licence, the premises will therefore be operating in breach of the condition of the licence. In accordance with the submissions no further action is considered to be desirable.
  

DATED at WELLINGTON this 11th day of November 2009
Judge E W Unwin
Chairman

Victoria Park New World.doc