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Vive la révolution

Well, we may have only one retailer in the near future — AmazonWholeFoods. But we sure have a lot of beer to choose from.

This jumped out at me when looking at beer approvals from a recent 10 day period in 2017. I saw no less than 720 new brands/approvals — just for beer — in this small and recent time period. Most of them seem like just about the opposite of Budweiser and Coors.

By contrast, I looked at the same 10 day period, 10 years prior. The landscape is altogether different. In the 2007 period I see a relatively puny 175 approvals. The overwhelming preponderance of those labels are from big or very big companies:  Miller, A-B, Sam Adams.*

In the 2017 period I see almost no mega-brews. If this is not a revolution, it seems to be a radical change at least, in just half a generation or less. Amazon has well proven they can stock and sell a lot of books and other SKUs, without losing a bunch of money. Let’s see how they do with a few hundred thousand beers.

Powdered Alcohol is Not Dead

Just when we least expected it, here is another version of powdered alcohol. It got approved a couple weeks ago, after grinding through the process for a good long while (six months or more). Many thanks to an astute reader for pointing this out to us. The label raises a boatload of legal issues. Before wading into those issues, I’d like to ask who has seen powdered alcohol out in the wild, at retail? Who has tried it? The product is Lieutenant Blender’s Cheat-A-Rita, from a distillery in Texas. Much more coverage, of powdered alcohol and Palcohol, is here.

Gluten

We wanted to check in and see what’s been happening with gluten claims, in connection with alcohol beverages. LabelVision data shows virtually no references to gluten until 2012. Then, TTB approved the first label with a nice, clear reference to “gluten free.” That label is below (potato vodka, brand name Spud). After rapid growth, from 212 to 2016, the gluten references seem to be leveling off, so far in 2017, at about 2016 levels. TTB’s policy is here (TTB Ruling 2014-2, Revised Interim Policy on Gluten Content Statements in the Labeling and Advertising of Wine, Distilled Spirits, and Malt Beverages).

Ginger Tonic from Gallo

If I recall right, TTB did not allow terms like “Tonic” or “Elixir” for many decades. This Thunderbird label, however, clearly shows that “Tonic” is okay these days. Way back, it apparently sounded far too close to a curative claim, as did “elixir.” TTB approved the above label on April 7th.

This label also seems noteworthy because it marks a return of Thunderbird, as an important brand, after almost 10 years without any approval within the TTB database. The new version of Thunderbird is a malt beverage with natural flavors. This is not easy to see. Can you spot the class/type statement off toward the upper right? Before the approval above, and two other versions, Thunderbird last appeared in the TTB database way back in 2008; then and since the 1950s, it was a flavored wine. This article has a lot of history about this important brand and suggests that U.S. law did not allow flavors in wine, until the dawn of this brand. This is yet another example of how brand names have jumped from one category to another, like Smirnoff jumping from spirits to malt beverages more than 16 years ago now.

Horses, Bourbon, Kentucky

I stumbled upon an interesting article in the Kentucky Journal of Equine, Agriculture, and Natural Resources Law of all places. Even though it’s based in Kentucky, I am startled to see that perhaps Mark Brown missed this, in the wee hours of the night, when he combs through the booze press near and far.

The article is entitled “‘Handmade’ or ‘Made By Hand’: Assessing Alcohol Labeling Practices and Evaluating a Popular Consumer Class Action.” It came out during the past year or so. I have followed the handmade litigations, a lot, in these pages. So I don’t want to rehash that stuff. I will mostly highlight a few points in this law review article, by then law student Hannah Simms. She says:

  • “In 2013 alone, the alcoholic beverage industry in the United States generated nearly $456 billion in total economic activity.” This seems mighty high to me.
  • “… courts have been entirely inconsistent on whether or not to apply safe harbor provisions contained in a majority of state deceptive and unfair practice laws.

Noting that the trends are not yet settled, the author wraps up by saying:

If the courts are unwilling or unable to address the situation, the responsibility to take action to protect the industry must shift to the TTB. The TTB could provide clarification of the COLA approval processes that seem to be a hang up for courts. The agency could also opt to issue definitive rulings that provide guidance to industry officials on the correct use or understood meaning of common terms used on labels. This would not only give TTB officers some direction when approving or denying COLAs, but it would also give manufacturers an opportunity to protect themselves and avoid these suits that involve costly litigation since they would have a better understanding of the acceptable use of the terms. If this problem continues unaddressed, liquor consumers and connoisseurs will come out the real losers, because whether manufacturers are forced to go through a costly re-labeling process or continue to litigate these issues in court, it is sure to affect the market price of our favorite beverages.

Since the publication of this article, the pace of the alcohol beverage labeling litigations seems to have eased up markedly, especially since very few courts seem willing to dole out harsh outcomes, beyond the heavy costs of litigation in general.

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