The Proof Is in the Pudding Cup 

When they learned that boozy Jell-O shots were en route to California stores, local children's advocates went on the rampage.

One of the first things 27-year-old entrepreneur Brian Pearson will tell you is that as a Marine he once guarded President Clinton. It's his way of discounting the hordes of critics who've accused him of being irresponsible and immoral when he began marketing Zippers, the first prepackaged 24-proof Jell-O shot, starting five years ago.

But tales of Pearson's top secret Category One clearance haven't been enough to stifle the swarm of state officials and alcohol policymakers across the country who are furious at Pearson, his partner Nicholas Costanzo, and their Ohio-based company BPNC (their initials), for creating a booze product that so closely resembles kiddie snacks. Pearson argues his company is just meeting demand for a longtime college-party staple. "I didn't come up with them," he says, "I'm not the Jell-O shot king."

Over the past decades, the liquor industry has shifted from hard liquor to alternatives like light beers and wine coolers, and all manner of novelty cocktails. With each new product, many of which mask the bitter taste of alcohol, critics accuse the industry of courting the underage market in an effort to make more money. For concerned policymakers, Zippers -- available in fruity flavors such as Rum Rush (cherry), Tijuana Tease (lemon), Vodka Splash (orange), and Whiskey Drop (lime) -- exemplify the trend.Now available in more than twenty states, this new product has fueled debate about what should or shouldn't be sold in stores. Opponents argue that the liquor industry also has a moral duty to stop marketing sweet-tasting alcohol products in ways that may be attractive to teens.

Yet beyond a few unsubstantiated rumors, nobody has produced any evidence of the dangers Zippers theoretically pose. That hasn't stopped the local pro-kid, anti-booze contingent. With Zippers infiltrating the California market, these folks have gone on the offensive. East Bay Assemblywoman Wilma Chan recently introduced a bill that would ban the sale of Zippers-like products, except in bars. After clearing one Assembly committee on a 20-4 vote earlier this month, the bill now awaits consideration by the Assembly Appropriations Committee. Chan views it as preventive. "It's better to be safe than sorry when you're talking about children," she says.

In Pearson's view, his company is being singled out for such attacks mainly because it's too small to ward them off. Anheuser-Busch, he says, "would laugh at them." But Sergeant Leonard White, who heads Oakland's Alcoholic Beverage Action Team, believes Zippers are especially dangerous. "Look at the age bracket this product is dealing with," he says. "There's nothing about Smirnoff Ice or Bacardi Breezers that necessarily suggests a five- or six-year-old will be attracted to the packaging."

Sharing this view is Joan Kiley who, as director of the Alcohol Policy Network in Berkeley, was instrumental in crafting Chan's bill. "They're packaged in a way that looks like innocent Jell-O snacks that children are really attracted to; they taste sweet and fruity," she says. "Even with the best intentions, a young child could get hold of them and eat them innocently or put them in their lunchbox."

Zippers do have their backers. Mike Ross, a spokesman for the California Alliance for Consumer Protection, testified in committee against Chan's bill. He believes the anti-booze crew didn't give the company a chance to address their concerns before rushing to quash its business. "There should be a step between selling it and outlawing it," Ross says. "It means a single guy like me, if I want to go out on a boat with a six-pack of these, a sandwich, and a girl, I'm not allowed to do that."

Zippers first came to Kiley's attention last year during a presentation by kids involved in her organization's Youth Prevention Project. The teens expressed concern about the colorful product packaging and snazzy Web site. Alameda County Supervisor Nate Miley was at that meeting, Kiley says, and said he thought something should be done -- even though the target of this local firestorm isn't yet available at East Bay stores.

Kiley's group worked with Alameda County's public health department and state Alcoholic Beverage Control (ABC) to develop a bill, which county supervisors agreed to support. Manuel Espinoza, ABC's then-interim director, also shot off a letter to BPNC's contract manufacturer: "While the product ... may be technically legal under California law and regulations, your decision to package and market them in a manner that so closely resembles children's snacks is both ill-conceived and insensitive to the significant underage drinking problem in this country." At the very least, critics say, marketing Zippers is irresponsible. "To me," says Nancy Spradling, executive director of the California School Nurses Organization, which backs Chan's bill, "putting alcohol in gelatin is a pretty strong statement that -- let's put it this way -- it wouldn't bother you if it got to kids. I'm not going to accuse them of absolutely going after kids, but what adult is going to want to buy it and eat it?"

Quite a few, actually, if you've ever heard of Spring Break. "Everybody loves Jell-O shots," says Dax Englert, a clerk at United Liquors in SF's Marina District who convinced his boss to sell Zippers. "It's like saying: 'What adult would want to have any rum in his Coca-Cola ... that's ridiculous!' "

Pearson insists the intended consumers are his own peers -- legal drinkers 21 to 40. The idea struck him after his mother suggested he buy some Jell-O shots for his sister's 21st birthday. Realizing no such product existed in stores, he and Costanzo went to work, choosing what they figured was appropriate packaging -- little plastic cups sold in a cardboard eight-pack. They found a manufacturer and began producing Zippers.

Almost from the start, the fledgling company was a target of controversy. At first, there was confusion on the state's part as to whether BPNC needed a liquor license to market what was deemed a "food" product. As sales grew, Pearson and Costanzo sought permission to manufacture the product in-house. After spending thousands of dollars on equipment, Pearson says he came to realize the state had no intention of granting a manufacturing license.

Meanwhile Ohio first lady Hope Taft, after receiving a letter from antidrug group Ohio Safe Schools, launched a national media campaign denouncing Zippers as dangerous for children. Taft's public attack, Pearson says, came after the group canceled three separate meetings to discuss its concerns directly with the company.

Efforts to derail BPNC Inc. culminated last June, when Pearson found himself at work surrounded by seventeen police officers, some with guns drawn. They produced a search warrant accusing him of illegally manufacturing alcoholic products without a license, citing the equipment he had purchased as evidence. They proceeded to ransack his office, taking computers, fax machines, desks, chairs, dry-erase boards, and telephones. "Their goal was to put us out of business," Pearson says. In addition, he says, the police notified the media, and TV crews arrived even before the cops did. "At no point have I ever manufactured the product," he says, "but I couldn't get the TV stations to report that."

Prosecutors then added insult to injury, Pearson says, by refusing to charge the company with a specific crime, delaying its efforts to get back on its feet. Next, he says, they demanded a guilty plea to three felony counts, including racketeering, which BPNC vehemently rejected.

A grand jury ultimately threw out the state's request for an indictment against the company, but the damage was done: BPNC had made $2.5 million in the first half of 2002 -- its first "big" year -- and expected to make $3.5 million more by year's end. Instead, it brought in just $80,000. Now, the owners are fighting back with a $9.9 million lawsuit against Taft, the Ohio Department of Public Safety, and the Ohio Department of Liquor Control. From the beginning, Pearson says, they've worked hard to keep everyone happy. New packaging for the product, available in May, will fully enclose the gelatin cups -- which will also be individually marked as containing alcohol. The box will stand upright like a liquor bottle. The new design, Pearson says, has received qualified praise from Ohio Safe Schools and the Bureau of Alcohol, Firearms, and Tobacco. "Nick and I never in a million years thought that people were going to be this upset over what we were doing."

But BPNC is still trying to fight anti-Zippers legislation across the country. Pearson says he plans to take on Pennsylvania, which has banned the product outright, and will hire a lobbyist to oppose Chan's bill. BPNC is also hedging its bets by expanding its marketing overseas, where the product has been welcomed. Pearson says his company now has distributors with countries such as Holland, Switzerland, Slovenia, and Canada which, he says, can't understand the attitudes here. "To hell with the US," they tell him. "Sell your product over here."

Meanwhile, the debate between what is moral versus what is legal rages on in towns like Berkeley and Oakland, fueled by a product some people feel skirts that line too closely. "There's a big disconnect in the US between what is legal and what people's opinions are," Pearson says. "I'll work with you and I don't want you mad at me, but the bottom line is, I'm creating a legal product, so go pick on somebody else."

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