America - US Legalization in 2007|
In 2007, after 95 years of
prohibition, absinthe with less than 10ppm of thujone was finally
authorised again for sale in the United States. This remarkable development
thanks to the efforts of two companies, working
independently of each other: the small
family owned Kubler distillery
in Switzerland (the same distillery, that two years earlier,
instrumental in the re-legalization of absinthe in Switzerland itself) and
Spirits, a new startup headed by Jared Gurfein, a New York
There is some dispute as to which of the two companies deserves
the lion's share of the
credit. Kubler undeniably were involved in the
legalization process far early than Viridian
were, equally undeniably
though it was Virdian's Lucid absinthe which was first to market
US, a few months ahead of Kubler.
It appears that the Alcohol and Tobacco
Tax and Trade Bureau ( usually abbreviated to
just TTB ) pursued
entirely independent negotiations with both companies
with hard-won concessions to the one company not necessarily
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When did the whole process begin?
Kubler of Switzerland set out to
legalize quality absinthe in the US in 2003, a short time after working to
change the Constitution in
Switzerland to once again permit the legal
manufacture and sale of absinthe there.
How did you as a
lawyer get involved?
I began specializing in US alcohol
beverage law in 1988. In the late 1990s I worked on Absente Liqueur; this
is the closest to
traditional absinthe that US law would allow at the
time. In 2003 a Texas-based alcohol beverage importer asked me to seek
approval for Kubler Absinthe. It was obvious that it would be a giant
struggle, and I tried to convey this to the Texas importer (Dan
and Kubler. To Dan's credit, he was undaunted. As a good Texan, he
didn't want to hear about all the impediments. A
month later I
sent a bill for the first few hours of work. Dan expressed dismay.
In turn, I was surprised that Dan thought a few hours
much, and so obviously we had some talking to do. We talked it through and
came to an understanding that held up well
over time; it gave me an
incentive to spend as many hundreds or thousands of hours as may be necessary,
so long as there was a
good chance we would prevail
What were the initial steps taken?
And how was the product formulated?
During 2004 we made
good progress toward obtaining TTB approval for the traditional Kubler Absinthe
formulation. A few weeks
after submitting samples and
documentation for analysis at TTB's laboratory, and after just a few
discussions, we were delighted to
learn that TTB had confirmed that the
product was safe, and that TTB would not require any changes to the formula.
especially critical because Kubler was not willing to
change the traditional formulation. Kubler Absinthe dates back to 1863 and
been made according to the same recipe by four generations of the
Kubler family, in the Val-de-Travers. [
For an example of a
ban circa 1910
bottle of Kubler previously sold by Oxygenee
Ltd, see our Vintage Absinthe section
] Based on my available
information, this is more than two and a half years before TTB agreed to
allow any other absinthe (with Artemisia absinthium, fennel,
But there was one serious problem. TTB would not allow it
to be labeled as “absinthe.” TTB said it was an illegal drug term.
other hand, Kubler was, as I think you can imagine, not
interested in removing this term or calling it something like herbal
So the actual use of the word
"Absinthe" was a bigger problem than the thujone
Yes. We spent the next two years
evaluating whether to use a term slightly different from absinthe, or take out
the thujone, or to get
litigators involved. The first two ideas
would have been temporary measures only. But Kubler was not interested in
compromise product. Peter Karl (Kubler's export
manager) said “we will never call a horse a
You'd reached a kind of impasse. How
did you move forward?
By 2007 the project had chewed up
thousands of hours of my small law firm's time. I decided that we had to
find a way to win or lose
and be done with it, or risk running my
practice into the ground. I consulted with several big-time FDA experts
and litigators. We had
assembled a considerable budget, but many
of the other lawyers advised that the odds were not good.
turned to the Swiss Embassy. We thought this might help because, based on
the prevailing demonization, it seemed
natural that TTB would have a
fairly strong and negative view of those trying to “cash in” on this “dubious”
stuff. The debonair
Embassy person was very skilled at removing
this impression. He was able to explain that absinthe is newly legal in
Kubler is an old-line, respected, family business, and the
Embassy would like to see this fine Swiss culinary product approved unless
there is a good reason otherwise.
Over several weeks, we pressed for
a meeting in Washington. In February 2007 TTB agreed to meet with us.
TTB had about 10
officials at the meeting, including a TTB
attorney and Gracie Joy (in charge of spirits labels and formulas). On our
side we had Peter
Karl, Urs Broennimann from the Embassy, Dan Dotson,
myself and my law clerk. We made our points for about two hours. TTB
listened politely and said little, even when we raised questions.
TTB did not agree or disagree when we explained that it was safe, and
that it complied with all duly promulgated rules from TTB, FDA and Customs.
Then, without fanfare, the TTB person in charge said “we
will not allow
absinthe to be larger than the brand name.” Wow. With that we had
almost everything we needed. We spent the next
45 minutes trying
to ensure that we heard correctly, and confirming the details. Peter and I
rushed back to my office and got on the
phone with the graphic
designer. We implemented several TTB recommendations (they were mostly
peripheral) and re-submitted
the label the same day. TTB moved
slowly and cautiously. They didn't like the bold print on the back label
(absinthe in bold). They
said 33.8 fluid ounces should be 33.82.
Each little back and forth took a few weeks. Near the end, TTB
raised concerns about the
thujone. I suggested that TTB should
qualify the label approval by requiring that the “finished beverage must be
‘thujone free’ as per
21 CFR 172.510.” We got label approval a
few days later. It took extra time because Kubler refused to compromise anything
font sizes. Various press accounts and other evidence suggest
that other brands may have made critical changes, such as lowering
their thujone level or in the case of Absinto, actually avoiding the term
"absinthe". Peter Karl's instructions to me were that "we will not
compromise the integrity of authentic Swiss absinthe."
point of our meeting and after, TTB was incredibly open-minded about this topic,
and gave us lots of time and attention. TTB
gave us all the
assurances we needed, in the meeting, so that Kubler could go forward
confidently and ramp up production, for the US
approved another brand within a few days after Kubler’s meeting at TTB. As
soon as the policy shift became public, in
this manner, we accelerated
our efforts to get formal, public, label approval. Three years after the
initial submission, TTB approved
What do you think were the principle
factors that persuaded the TTB to change its view on
In addition to showing it's safe and
compliant, one of our main arguments was that TTB's continued refusal to allow
Kubler in no way
means absinthe will not come in. It only ensures
lawlessness (untaxed, unregulated absinthe with no formula approval, no label
approval and no government warning). Google made this very easy
to prove, showing thousands of illicit sources. TTB seemed
concerned (a bit surprised) and certainly did not minimize this issue.
We asked what they have been doing to stop the flow of illicit
absinthe. They had very little to say. We suggested that there
may be no better way to foster compliance than to cooperate with the
people like Kubler who are trying to play by the rules.
A few days
later, TTB said they had checked with FDA and it may be better for us to wait,
until FDA decides how to handle this. Fully
aware of the FDA
situation, we explained that we don't want to wait any more and we are confident
Kubler complies with all the
relevant laws and regulations. A few
days after that, we cleared the way with US Customs. At no point did TTB
demonstrate) that Kubler conflicted with the rules or
regulations. That is, it was not necessary to change any laws or
even interpretations. It was only necessary to
change TTB's mindset. For decades “everybody knew” (wrongly) it was bad,
- without looking at it in a fair, clear-headed manner.
It strikes me as a cautionary note about governmental and human
general (capable of massive self-deception and
illogic). At one point TTB summarily urged us to “delete all references to
because it's a drug term (no matter how
There were very few Eureka moments. Instead it was
hundreds of emails, dozens of phone calls, a few meetings – over the span of
four years and thousands of hours. Also, it was knowing deep down
that it's all a huge misunderstanding, a historical accident not
supported by facts or logic or law.
I feel strongly that Kubler did
most of the heavy lifting – in the US and in Switzerland – to put an end to the
nonsense. I think they
deserve credit for doing something
important, and for paving the way for all the other brands sure to follow.
It’s possible that several other companies helped. Some are
saying they spent a lot of money lobbying FDA in late 2006, but the
currently available information shows that FDA had no real qualms about
this after 2004. Also, I do not understand why there should
fanfare about the realization that pre-ban absinthe had only a low level of
thujone. Kubler knew this and took it as a given since
of our project; it was never an issue. FDA and TTB never said otherwise.
It may be important as a matter of history but
has no bearing on
the legal situation in the US. A discovery that pre-ban absinthe had very
little thujone would have almost nothing
to do with TTB/FDA relaxing
So thujone itself was a surprisingly
minor issue in the whole process?
There was almost no
discussion about thujone (among TTB and Kubler). The FDA rule says thujone
can't be over 10 ppm. This was
obvious since the initial
inquiries, going back at least 10 years. Back in 2003, Kubler said fine,
it’s not a problem because it’s well
within the normal range (as
subsequently shown by Lachenmeier, yourself and others).
At many stages,
TTB was seemingly more concerned about the “wicked” term “absinthe” as compared
to concerns about thujone. As
far back as 2004 we pressed TTB to
test the thujone and all other aspects of Kubler and confirm that all is within
there was very little discussion about it
Also, there was no real need to have a discussion about the
thujone because TTB has its own laboratory, about 15 miles outside
Washington, with about a dozen beverage and flavor chemists. They
were quite capable of figuring out, for themselves, that the
issue was within all pertinent limits.
Throughout the four years, we knew
we could probably bring absinthe to the US at almost any point, if we made
compromises. But Kubler preferred to be patient for just a
few more years, after already waiting more than 90 years, and it was a thrill
see Kubler Swiss Absinthe come back to life, in the US, without
compromise. The new importer (Altamar Brands, LLC, with a lot of
industry heavyweights) is on course to roll it out nationwide.
TTB Circular of 16th October 2007,
fully outlining the requirements for the licensing of a legal absinthe in the
The other pioneering company involved
in the US legalization effort was Viridian Spirits, who although starting the
process several years
after Kubler, actually brought their product,
Lucid Absinthe, to market a few weeks earlier. Mr Jared Gurfein, the founder of
kindly given the Virtual Absinthe Museum the following
account of the legalization process:
An original circa 1910 bottle of
Kubler & Romang Extrait d'Absinthe.
For more details, see our
Click on the images
TTB Standard for Screening of
Distilled Spirits for Thujone by Gas Chromatography-Mass
such as cedar leaf,
sage, tansy, thyme, rosemary and wormwood (an ingredient found in certain
flavored distilled spirits such as TTB
has developed a gas
chromatography/mass spectrometry (GCMS) screening method that may be used to
quantitate total thujone TTB
has developed a gas chromatography/mass
spectrometry (GCMS) screening method that may be used to quantitate total
(alpha + beta) in distilled spirits. The method has not
been validated for wines, malt beverages, or nonbeverage products. Since
menthol is added as an internal standard, all test samples should be
verified for the absence of menthol.
menthol is added as an internal
standard, all test samples should be verified for the absence of
The following is a synopsis of TTB’s thujone screening
method. The full screening method will be posted on TTB’s website in
Stock Solutions and Calibration
500 ppm (-)- α-Thujone (≥96% pure) and 1000 ppm Menthol (≥99% pure)
stock solutions are prepared in ethanol. Five calibrations
standards are prepared in 40% ethanol to contain: 1 ppm a-Thujone and 10
ppm Menthol; 2 ppm a- Thujone, 10 ppm Menthol; 5 ppm
a- Thujone, 10 ppm
Menthol; 20 ppm a- Thujone, 10 ppm Menthol; 50 ppm a- Thujone, 10 ppm
Sample Preparation and GCMS analysis
5 mL of each
calibration standard and 5 mL of testing sample(s) are transferred to separate
glass test tubes. The testing samples
methylene chloride, the
solutions are extracted and the organic layer (bottom) is removed and placed
into a GC vial for analysis.
N.B. If the alcohol content of the testing
sample exceeds 45% ABV, the testing sample is diluted with DI water to 40% ABV
and 5 mL of
the resulting solution is extracted as described.
GCMS parameters: Scan acquisition mode; splitless injection;
constant flow; DB-Wax or a similar 30 m capillary column.
Calculations and Reporting Data
alpha-Thujone/Menthol ratio calibration curve, determine the total amount of
thujone in the sample as the sum of alpha- and
beta-thujone in ppm. The
beta-thujone value is based on the alpha-thujone calibration curve. If the
testing sample was diluted prior to
extraction, the dilution must be
factored. The GCMS screening method has a limit of quantitation of
approximately 1 ppm.
DEPARTMENT OF THE TREASURY
and Tobacco Tax and Trade Bureau Industry Circular
October 16, 2007
Use of the Term Absinthe for
To: Beverage Distilled Spirits
Plants, Importers, and Others Concerned.
explains the Alcohol and Tobacco Tax and Trade Bureau's (TTB) policy regarding
the use of the term "absinthe" on labels
of distilled spirits products
and in related advertising material.
absinthe, or absinth, is a high alcohol content, anise-flavored distilled
spirits product derived from certain herbs, including
absinthium, or wormwood. Wormwood usually contains the substance thujone, which
is purported to have hallucinogenic
or psychotropic effects. Absinthe
was popular in the late 19th century and early 20th century, particularly in
France, and was often
portrayed as an addictive and psychotropic
beverage due to the presence of the substance thujone.
TTB and its
predecessor agencies have rejected applications for certificates of label
approval (COLAs) or proposals for labels with
reference to absinthe
because the agency frequently found that the proposed label was misleading or
referenced drug use, or that the
product was a health
Recently, TTB received inquiries about obtaining label approval
for absinthe-related products and for the use of the term "absinthe" on
COLAs. As a result of these inquiries, we are restating our position with
regard to how the term "absinthe" may be used on labels and
TTB'S POLICY REGARDING THE USE OF THE TERM
We approve the use of the term "absinthe"
on the label of a distilled spirits product and in related advertisements only
if the product is
"thujone-free"; pursuant to the Food and Drug
Administration's (FDA) regulation at 21 CFR 172.510. Based upon the level of
of FDA's prescribed method for testing for the presence of
thujone, TTB considers a product to be "thujone-free" if it contains less than
10 parts per million of thujone. However, should the FDA set a new
standard for "thujone-free", in accordance with 27 CFR 13.51,
that are not in compliance with that revised standard will be revoked by
operation of regulation.
Labeling and Advertising.
In addition to
the requirement that a product be "thujone-free", TTB applies the following
guidelines in approving labels and reviewing
Since there is no class and type understanding, the
term "absinthe" may not be used as the brand name or fanciful name, or as part
of the brand name or fanciful name, because otherwise it would appear
as a class and type designation. 27 CFR 5.42(a)(1).
The term "absinthe" may
not stand alone on the label; it must be accompanied by additional or dispelling
information so as not to
appear as the class and type designation. 27
Any artwork or graphics on the label, advertising, and point
of sale materials using the term "absinthe" may not project images of
hallucinogenic, psychotropic, or mind-altering effects. 27 CFR 5.42(a) and
TTB will include the following qualification statement on all
approved COLAs showing the term "absinthe" on a label: "The finished
product must be "thujone-free" pursuant to 21 CFR
Submission of Samples.
Domestic producers and importers
of products using Artemisia absinthium, or other ingredients containing thujone
subject to 21 CFR
172.510, must submit a sample to the Beverage Alcohol
Laboratory for thujone testing prior to seeking label approval. You must
submit a 750 milliliter sample of the finished product, along with a copy
of your permit and the formula for the product. For screening
the method we use to determine whether the product contains less than 10 parts
per million of thujone, is a liquid-liquid
extraction - GC/MS method.
We have posted more information on this method at http://www.ttb.gov/ssd/screening.shtml.
Although TTB may approve the use of the term "absinthe" on the
label under the standards outlined above, U.S. Customs and Border
Protection (CBP) is responsible for administering the laws and regulations
regarding the admissibility of merchandise into the United
approval by TTB does not constitute approval for admission into the United
States. We have advised CBP of our position.
The informal account below of the
entire 4 year process from Kubler's perspective, exclusive to the Virtual
Absinthe Museum, is based
on an email interview with Mr Robert C.
Lehrman of Lehrman
PLLC, the law firm who assisted Kubler in
protracted negotiations with the TTB and the FDA, and is included
here with his permission. Included, by kind permission of Mr
are several documents illustrating different stages of the process.
is followed by a parallel first-hand account from Mr Gurfein of the
legalization process as seen through Viridian's eyes.
For further clarity
we've also added a transcript of the most recent TTB circular which outlines the
current requirements for legal
absinthe in the US, as well as the TTB
standards for thujone testing.
History of Viridian
In early 2006, while working as a
corporate lawyer in New York, I formed Viridian Spirits with a close friend
(Jonathan Bonchick) who is
third generation in his family in the U.S.
spirits industry. I had lived in Europe and during that time had become
Absinthe. So when we formed our company, our goal
was simple: revive Absinthe in the U.S.A. We formed a partnership
couple of close friends, funded the company sufficiently for a
long legal fight, and retained one of the most respected lawyers in the U.
S. spirits industry - Vince O'Brien (former general counsel of Seagrams) -
to help us in our task. And of course we partnered with Ted
Breaux and the Combier distillery to produce our
In early 2006, our attorney made some
informal inquiries with the U.S. Alcohol and Tobacco Tax & Trade Bureau
(TTB) about the
possibility of bringing absinthe into the U.S. TTB
quickly informed our lawyer's staff that absinthe was 'prohibited' from being
Indeed, an official at TTB told our attorney that
"Absinthe is not allowed, and whenever it comes up, it usually just goes
Early in 2006, before finalizing things with Ted, I had also
approached Yves Kübler and Peter Karl of the Blackmint distillery (Kübler
Absinthe)- people for whom I have great respect. I emailed Peter Karl
asking whether his distillery would be interested in working with
In his response, he said that he had been approached by importers for a
few years and had fought with the government but, that
as of early
2006, he still did not have any permission to import Kübler. He even went
on to ask me to keep him advised if I had any
better luck with the
Between the government's dismissive response, and Peter
Karl's email, we could only conclude that we were at square one with the
government. Certainly others had made the effort, but there was very
little we could see of any progress in early 2006.
However, we were
determined to open that still sealed door. We engaged in a very expensive,
persistent legal campaign with TTB.
Lucid’s formula itself was
not problematic. Indeed, Wormwood has long been a permitted flavoring
ingredient in alcoholic beverages
(since the 1970's), and, like many
pre-ban absinthes, Lucid’s thujone level was below 10 ppm. But the TTB had
a problem with the
very concept, and hence, labeling of a product as an
"Absinthe". They believed the term “Absinthe” was code for 'drugs'
what actually was inside the bottle.
that rigid thinking, despite being repeatedly turned away, we overwhelmed TTB
with information in a campaign that we
stepped up in the summer of 2006
that included nearly daily contact with them. First, we presented
historical information about the real
nature of true, Belle Époque
Absinthe and the wine industry’s campaign to discredit it in the early 1900's.
We sent videos prepared by
and featuring Ted Breaux, statements
filled with information, and even a legal brief I authored showing TTB that
there did not exist a
single rule, regulation or law in the U.S. that
actually banned the labeling or use of the term "Absinthe" in any way. We
went so far as to
prove the 1912 Food Inspection Decision that
originally banned absinthe was repealed in 1938 by the creation of the FDA and
been enforceable even prior to 1938.
hours of real negotiation and discussion, we began to see the light of day.
First, in October 2006, our formula for Lucid
without much incident. By then we had already been discussing the label
for months. Once we submitted it formally, we
were told that
because of the research and materials we presented, TTB had decided to do a full
internal assessment of the concept of
absinthe, and would get back to
Finally, after continued, near daily contact with TTB through
the remainder of the winter, we had a final meeting in February 2007 in
which we at long last were able to settle the open label issues, including
the manner in which we could actually use the term 'absinthe'.
Nearly every element of the label was discussed, and most of our original
label submission was approved. The key was they required
we add a
word next to “absinthe” to distinguish it from any negative imagery. At
the meeting, we proposed 'Traditionelle' but they said
they needed time
to consider it and then rejected it shortly after. Next, at the suggestion
of Combier and Ted Breaux, we proposed
'Supérieure' - this actually
took place in a multi-email exchange among TTB officials, our attorneys and me.
Upon receiving an email
approving the term, we immediately filed
a trademark application for the phrase, which is still pending at the US PTO.
About a week
later, after that final issue was resolved, on March
5, 2007 TTB granted our formal approval, and Lucid officially became the first
genuine absinthe legally allowed to be imported into the U.S. since
1912. We unveiled Lucid in April at the WSWA wholesaler show in
Orlando, and sales began in May in New York City.
The real credit
for all of this goes to Ted Breaux for the role he played with our company, both
in creating Lucid, as well as in the
support he gave us in our
negotiations with TTB – TTB acknowledged that they were very impressed with Ted
and several officials
knew of him and had researched him. I also
want to acknowledge the early perseverance of Yves Kubler and Peter Karl which
helped our quest, having put the TTB on notice that this was not
going to just 'go away', and they deserve credit for making that first,
early push. I am glad that their product was the next to come to
market, again representing genuine absinthe, and not a cheap
And finally, a great deal of credit should go to our attorney, Vince
O'Brien, and one of his former staff members, Deborah
Ringo, who did
most of the daily groundwork spending countless hours wrestling with folks at
TTB. Deb is the unsung hero in all this,
who deserves a great
deal of credit for all the work she did.
their joint efforts, the door to
legal absinthe sales in the US has at last been re-opened.