Our law firm has been in the heart of Fairfax County, Virginia, since 2001. Before that, I worked a couple blocks from the White House. For the most part, we’ve handled federal beverage law during that time. But increasingly, we are handling local law matters, and this story made the shift seem more real.
Jim Vance says the zoning laws got loosened, to make it easier for breweries, wineries and distilleries to open in our county. Even before this change, we were noticing Caboose Brewing down the street, Fair Winds Brewing in Lorton, and The Winery at Bull Run across town in Centreville. There is also the Paradise Springs Winery in Clifton. This Bowman plant closed down in 1988, after beginning distilling operations in Fairfax in 1934. Less than 1.5 miles from the office, there was a winery for a while after Prohibition, producing “Virginia Maid” wine at what is now Nottoway Park. Come to think of it, that’s startlingly little activity for a big, upscale, increasingly urban county with over 1.1 million residents and covering over 400 square miles.
As locals and as lawyers, we look forward to many more fine beverage producers setting up in our county.
The plaintiff in a would-be class action lawsuit against Sazerac voluntarily dismissed all his claims in late January, ending the litigation. The case (Parker v. Buffalo Trace Distillery, Inc. et al.) began in November of last year, and concerned a subtle change on the label of Sazerac’s “Old Charter” brand of bourbon whiskey. The older and newer labels are above, side by side.
Among the various changes, the old label says, “AGED 8 YEARS,” while the new label simply displays the number “8.”
Plaintiff Nicholas Parker alleged that the Old Charter bourbon sold under the new label was no longer aged for 8 years, and that Sazerac’s continued use of the number “8” on the label caused consumers to believe that the bourbon was aged for 8 years. Sazerac responded with a motion to dismiss the complaint, alleging that Alcohol and Tobacco Tax and Trade Bureau (TTB) approval of the label provided Sazerac with a “safe harbor” from Mr. Parker’s claims.
Just two weeks after Sazerac filed its motion to dismiss, Mr. Parker voluntarily dismissed the action. This voluntary dismissal meant that the court did not have to rule on the merits of Sazerac’s safe harbor defense, or Mr. Parker’s claims. If the Tito’s “Handmade” Vodka cases are any indication, it is likely that the safe harbor defense would not have insulated Sazerac in this case. It would seem that the parties reached a settlement, although the terms of any such settlement will likely remain private. Old Charter drinkers should keep an eye out for future label changes, which might indicate the terms of a settlement reached.
The voluntary dismissal notwithstanding, Mr. Parker’s claims raise an interesting issue: Shouldn’t TTB have a policy for this sort of thing? As it turns out, TTB does. TTB’s general stance has been that unexplained numbers on spirits labels are prohibited. That is, if you want to say “8,” you need to explain the significance of the number (e.g., “AGED 8 YEARS,” or “A BLEND FROM 8 BARRELS”). Take Jack Daniel’s, for instance:
While the number “7” appears prominently, the context (i.e., “Old No. 7 Brand”) makes it clear enough that “7” is part of the brand name, not the age of the spirit.
Re-examining the Old Charter labels, the new label does not seem to fall in line with TTB’s tenet. Although Sazerac’s incorporation of the unexplained “8” did not lead to a label rejection in this instance, it probably goes a long way toward explaining why Mr. Parker pounced on Mr. Brown.
The whiskey rules are pretty strict when it comes to straight whiskey. It has to be aged two years or more, in oak. But for many other types of whiskey, the rules have gotten pretty lax, and it seems like it only has to be aged but a moment.
Where you have a whiskey not designated as straight, it’s ok to age it let’s say one month, but the regulations require an age statement, any time the total age is less than four years. Here are a few examples of such age statements, roughly from shortest to not so short.
- High West Silver Whiskey. STORED IN OAK FOR MERE SECONDS (2013)
- High West Silver Whiskey. MINIMALLY AGED IN TOASTED OAK (2016). This label is also noteworthy because it is one of the very few that actually mentions TTB, and such administrivia as class/type codes, right on the front label. WHISKEY is big but the actual c/t is quite small.
- Old Natchez Trace Rye Whiskey. RESTED FOR ONE MINUTE IN A USED WHITE OAK BARREL.
- Clark New Whiskey. BARRELED FOR MAYBE 5 MINUTES; STORED 5 MINUTES IN REUSED COOPERAGE.
- Jersey Spirits White Whiskey. STORED IN AN OAK BARREL FOR A VERY SHORT TIME.
- Mayberry Whiskey. AGED TWO WEEKS IN TOASTED OAK.
- Blue Mountain White Whiskey. AGED IN NEW OAK BARRELS FOR 30 DAYS.
- High West Utah Whiskey. AGED … IN NEW AND USED BARRELS FOR A MINIMUM OF 1 YEAR.
* Some of the statements are paraphrased; you can see the full context at the linked approvals.
In many cases, the age statement is fairly small, on the back, mixed with other text, or some combination thereof. If you prefer whiskey aged more than “a very short time” — you may need to keep your eyes peeled, or just look for straight whiskey. Let us know if you see other good examples.
The full regulation is here and a key excerpt is in the image below.
Finally, TTB has a helpful FAQ here. It tends to say this sort of thing is no longer ok. Not ok because it tends to overstate the age (AGED LESS THAN TWO YEARS). It is hard to know whether it’s aged 12 seconds, 1.99 years, or — 0.00000038052 years.
Right there on the label of this beer, almost every part of it, Austin Beerworks makes it clear that you should proceed with maximum caution. You should not even think about consuming this beer with KFC, while wearing lederhosen, or while operating heavy machinery of any sort.
The label is not new, but it is a tad out of the ordinary. It pokes gentle fun at the oh so serious Government Warning Statement, mandated by Congress since the 1988 Alcoholic Beverage Labeling Act. In the early years, after this Warning became required on most every beer, wine and spirits label in the U.S., it would have been essentially unthinkable, to allow any fun-poking, aimed in this general direction. To wit, one of the Government’s biggest objections to the Black Death Vodka labeling and packaging, was that it tended to mock the — oh so serious Warning. This label shows that a lot of beer has flowed under the bridge since then, and there has been a general chilling out.
It probably also helps, that the real Warning does appear at least twice, and with good, solid prominence and contrast. But, that base having been covered, Austin revs up for a snarknado. I can’t list all the snarky comments and warnings, because there are so many. But some of my personal favorites are that this beer should not be paired with:
- Eyebrow tweezing
- Edible underwear (or other underwear, such as bras)
- Putting baby in a corner
The full brand is Austin Beerworks Heavy Machinery IPA, and the approval is here. Apart from the modest legal issue noted above, I hasten to add that I have a small, personal connection to this label. Christian Helms is the man behind this label and many other high-end alcohol beverage labels. I went to see him once, in Austin, to try to get help on a big legal and design project. As he sat behind his big screen, with lots of Texas light streaming in, he was willing to talk — but he was not willing to take on the project. At any cost. In 30 years since law school, I have rarely seen a professional who won’t consider any given project, if the fee gets high enough. He was not interested, at any price. One part of me is disappointed, and the other part gives him credit for his decisiveness (not to mention his good sense when it comes to mixing beer and bro-tazing).
Please let me know if you see any other funny, or unusual warnings out there.
When was the last time you tried TTB’s Formulas Online (FONL) system? It continues to change every few months, since its inception a few years ago. When I went to use it earlier this week I was struck by how much information TTB is loading into the system.
As an example, let’s take a look at what FONL has to say about colors (food and beverage colors such as FD& Red #40). First you log in and get your home screen (as above).
Then you click along and go to enter some ingredients. Near this area, there is a handy definition of what is a “color” (in this context). It’s not always an easy question. Ok bigshot, is saffron a color? What about grape juice? The help points out that the predominant reason for the addition is the key, when the ingredient has more than one function (such as color and flavor).
Once we verify we are in fact talking about a color, you would proceed as here.
Once you click “Color,” it very helpfully pulls up a list of the most common and allowable colors, along with alternative names such as Red 40/E 129. This list goes on to cover fruit juice, grape skin extract/enocianina/E 163, mica, oak, paprika, riboflavin, saffron, titanium dioxide, tomato, turmeric, and vegetable juice.
Then there is more help, off to the right, with more links.
There is a lot of information and it can be a bit daunting at first, but once you get used to it, the extra information is quite helpful. Last but not least, many thanks and good wishes for Roberta Sanders, who retires from TTB (before Pres. Trump takes over) — after thousands of people helped, and tens of thousands of formulas approved.