The Basics: Starting July 1, 2024, holders of a Type 48 (bars and nightclubs that do not sell food) license issued by the California Department of Alcoholic Beverage Control (ABC) must be able to provide drug testing devices to customers, as stated in Business and Professions Code § 25624. Nightclubs will be most affected because of the kind of events taking place (typically heavy on musical talent and concerts attended by screaming fans).
As of now, this law is only in effect until January 1, 2027.
What is a Drug Testing Device According to the New Statute?
A “drug testing device” means test strips, stickers, straws, and other devices designed to detect the presence of controlled substances in a drink. The controlled substances that devices must be able to detect include, at a minimum, flunitrazepam, ketamine, and gamma hydroxybutyric acid.
There are a dearth of reported vendors for these kits, and ABC will not advise on what kind of kits comply and who sells them (see below). You are on your own folks!
Requirements of Business and Professions Code §25624
Licensees must: be able to provide drug testing devices to customers (e.g. have sufficient supply on hand to provide to inquiring customers), ensure devices provided to customers are not past the expiration date, and post signage on the premises alerting customers that such devices are available.
Licensees may sell or provide the devices for free. If sold, the cost to customers must be “reasonable” based on the wholesale cost (e.g. try not to mark up more than to cover costs of the program). If you have questions on where to buy these devices, tough luck, because the ABC has said they will not sell or provide kits, and will not recommend or endorse any specific company that does. An ABC FAQ, however, claims there are devices that can be purchased in bulk for less than $1.00 per device.
Additionally, once licensees acquire devices, they must ensure that any device offered to customers has not exceeded the expiration date on the product label, product packaging, or otherwise recommended by the manufacturer.
Last, licensees must place signage in a prominent and conspicuous location to let customers know that drug testing kits are available to test for common date-rape drugs. Specifically, the sign must say: “Don’t get roofied! Drink spiking drug test kits available here. Ask a staff member for details.” A sample sign is available on ABC’s website. Placing this sign behind the bar or in the rest rooms are likely the best places.
Penalties for Non-Compliance
Thankfully, licensees who do not comply with these requirements are not at risk of a crime. However, the ABC will not be shy about bringing administrative actions. Fortunately, licensees are not liable for defective or inaccurate tests (e.g. false positives/negatives).
Tons of questions remain.
How will the ABC enforce these requirements (active enforcement or only where customers complain)?
How much can go wrong with a testing strip requirement and how accurate are they?
How are the bartenders/customers trained to use the strips (will this be added to RBS training)?
While the statute limits criminal liability for a licensees’ failure to comply with 25624, can there be tort negligence claims where a date rape occurred and the bar had no kits?
Conclusion – Be Careful – Its Dangerous out there for everyone!
This blog is dedicated to occasional (and hopefully interesting) reports of state and national alcoholic beverage regulatory developments that we encounter in our practice. Booze Rules (and any comments below) are intended for informational use only and are not to be construed as legal advice. If you need legal advice please consult with your counsel.