(1) A manufacturer of a malted beverage may not distribute or sell the malted beverage in the state until the day on which the manufacturer receives approval of the labeling and packaging from the department in accordance with:

1. (a) Sections 32B-1-604 and 32B-1-605; and

2. (b) this section, if the malted beverage is labeled or packaged in a manner that is:

   1. (i) similar to a label or packaging used for a nonalcoholic beverage; or
   2. (ii) likely to confuse or mislead a patron to believe the malted beverage is a nonalcoholic beverage.

(2) The department may not approve the labeling and packaging of a malted beverage described in Subsection (1) unless in addition to the requirements of Section 32B-1-604 the labeling and packaging complies with the following:

1. (a) the front of the label on the malted beverage bears a prominently displayed label or a firmly affixed sticker that provides the following information in a font that measures at least three millimeters high:

   1. (i) the statement:

      1. (A) "alcoholic beverage"; or
      2. (B) "contains alcohol"; and

   2. (ii) the alcohol content of the malted beverage, if the alcohol content is not otherwise provided:

      1. (A) in a serving facts statement on the container; and
      2. (B) in a format allowed by the Federal Alcohol and Tobacco Tax Trade Bureau;

2. (b) the packaging of the malted beverage prominently includes, either imprinted on the packaging or imprinted on a sticker firmly affixed to the packaging in a font that measures at least three millimeters high, the statement:

   1. (i) "alcoholic beverage"; or
   2. (ii) "contains alcohol";
3. (c) a statement required by Subsection (2)(a) or (b) appears in a format required by rule made by the commission; and

4. (d) a statement of alcohol content required by Subsection (2)(a)(ii):

   1. (i) states the alcohol content as a percentage of alcohol by volume or by weight; and
   2. (ii) is in a format required by rule made by the commission.

(4) To determine whether a malted beverage is described in Subsection (1) and subject to this section, the department may consider in addition to other factors one or more of the following factors:

1. (a) whether the coloring, carbonation, and packaging of the malted beverage:

   1. (i) is similar to those of a nonalcoholic beverage or product; or
   2. (ii) can be confused with a nonalcoholic beverage;
2. (b) whether the malted beverage possesses a character and flavor distinctive from a traditional malted beverage;

3. (c) whether the malted beverage:

   1. (i) is prepackaged;
   2. (ii) contains high levels of caffeine and other additives; and
   3. (iii) is marketed as a beverage that is specifically designed to provide energy;
4. (d) whether the malted beverage contains added sweetener or sugar substitutes; or
5. (e) whether the malted beverage contains an added fruit flavor or other flavor that masks the taste of a traditional malted beverage.