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Prop 65 Warnings Pop Up on TTB Labels

In the past, for a long time, TTB would say no warnings are allowed, but for those mandated by Congress:  “According to the Surgeon General…” (as to getting pregnant, driving and whatnot).

Slowly but surely, however, this principle is colliding with the pent-up penchant for warnings throughout society. The pregnant lady came calling about 10 years ago. Bacardi’s 151 warning goes way back. There is even this spoof of the whole fondness for warnings.

In the latest iteration, these Prop. 65 warnings are starting to pop up. Off toward the upper right the approved label says:

CA PROP 65 WARNING:  SOME MATERIALS USED IN THE COLORED DECORATIONS ON THIS CONTAINER CONTAIN CADMIUM, A CHEMICAL KNOWN TO THE STATE OF CALIFORNIA TO CAUSE BIRTH DEFECTS OR REPRODUCTIVE HARM.

The label approval for this beer, along with a qualification about this extra warning, is here. It seems like labels of this sort started to pop up around 2012, and so far there at least 50 such approvals (referring to Prop. 65 and things like cadmium). Here is a second, albeit Stupid, example.

CBD Update

TTB approved this label July 18, 2017. There are very few other TTB labels that mention CANNABIS and SATIVA. Perhaps this product has hemp seeds, along the lines of this 2014 label approval. Then again, perhaps the Lithuanian product merely tastes like hemp or cannabis, as a literal reading of the label would suggest.

Though I see a few signs of cannabis and hemp, in recent approvals, I am not seeing any that mention CBD (aka, cannabidiol). CBD is one of many cannabinoids in cannabis; it is usually viewed as not intoxicating, though it may have various other impacts on brain function. This April 20, 2017 article does a good job of explaining about the barriers to seeing CBD in an alcohol beverage product, or on the label.

Although Dad and Dudes (“D&D,” the Colorado brewer) probably wanted to market something along the lines shown in the photo above, the actual federal approval is quite a bit less adventurous, as in the label image here.

The text near the green arrow, on a related approval, tends to show that D&D grudgingly banished the “additive(s)”.

The article says D&D:

will be fighting the federal government over a beer brewed with non-psychoactive CBD. …

Last September, Dad & Dudes was the talk of the town when it became the first brewery in the country to gain approval from [TTB] for a non-THC, cannabis-infused beer. The process took about a year, because the TTB required a thorough analysis of the ingredients and the recipe before it would give formula approval for Dad & Dudes’ patent-pending process and its beer.

[D&D] then announced plans for a new beer, General Washington’s Secret Stash, which would be brewed with cannabidiol — a hemp extract also known as CBD — and distributed in [a few states].

But on December 14, the U.S. Drug Enforcement Administration surprised the hemp and cannabis industries nationwide by declaring that it still considered marijuana derivatives like cannabidiol and hemp extract — even the non-psychoactive ones — to be Schedule 1 substances, just like marijuana. The announcement meant that these substances couldn’t be sold or carried across state lines, even if they are legal in some states.

It also meant that the TTB, which had granted formula approval to Dad & Dudes, no longer wanted the brewery to make the beer. The bureau gave the brewery ten days to surrender its formula.

TTB’s hemp-related policy is here and seems to date all the way back to 2000, a startlingly long time ago, in view of all the change swirling around these issues. DPF’s Lex Vini blog provides a good reminder about why it would not be prudent to plow ahead and make such products, before the policy gets thrashed about or modified:

California newspapers have recently reported on in-state breweries and wineries that are making CBD-infused products.  Given TTB’s treatment of Dad & Dudes Breweria, however, it is clear that the federal government believes that any such product requires a TTB-approved formula.  Moreover, given recent statements by the U.S. Attorney General, it seems unlikely that the current administration would permit TTB to grant formulas for the production of a product that involves the infusion of a Schedule I drug.  Producers engaged in making CBD-infused alcohol products absent a formula may be putting their federal licensing at risk until such time, at least, as the DEA changes its mind about the classification of marijuana extracts.

Watch this space for changes to the U.S. CBD policies.

Nutritious, Vitamin Wine

This deftly navigates the differences between FDA and TTB rules. If it had a little more alcohol, or a different type of alcohol, at least these 5 noted things probably would not fly.

  1. So far as we know, TTB does not allow electrolyte references on alcohol beverage labels.
  2. Nor does TTB allow vitamin references.
  3. From time to time in the past TTB has frowned upon prominent refresh claims on the grounds that they may imply therapeutic value.
  4. As of this writing it does not appear that TTB is ok with GMO claims.
  5. Finally, I would bet money against TTB allowing this term (nutritious).

All these claims are possible, and not suicidal, because the product is wine based, and under 7% alc./vol., such that FDA has full control over the labeling, while TTB retains control of the taxation and formula. The front label mentions that it’s a wine specialty, as here.

If this were 7% or more, TTB would probably require something a lot more descriptive than “Wine Specialty,” and would not allow this 12 ounce size, and would also require ABV to be spelled out. The product is Coco Cocktail, and there is no TTB label approval to which to point.

Who Wore R&R Better?

LabelVision shows about 71 Rock & Rye products approved over the last 17 years. These three really stand out, as bold designs.

The first is Mister Katz’s, from NY Distilling, of Brooklyn.  The second is Hochstadter’s Slow & Low, from Jacquin, of Philadelphia. The third is from Driftless Glen, of Wisconsin.

TTB prefers Rock & Ryes made precisely this way as per 27 CFR 5.22:

(3) “Rock and rye”, “rock and bourbon”, “rock and brandy”, “rock and rum” are liqueurs, bottled at not less than 48° proof, in which, in the case of rock and rye and rock and bourbon, not less than 51 percent, on a proof gallon basis, of the distilled spirits used are, respectively, rye or bourbon whisky, straight rye or straight bourbon whisky, or whisky distilled from a rye or bourbon mash, and, in the case of rock and brandy and rock and rum, the distilled spirits used are all grape brandy or rum, respectively; containing rock candy or sugar syrup, with or without the addition of fruit, fruit juices, or other natural flavoring materials, and possessing, respectively, a predominant characteristic rye, bourbon, brandy, or rum flavor derived from the distilled spirits used. Wine, if used, must be within the 21⁄2 percent limitation provided in §5.23 for harmless coloring, flavoring, and blending materials.

Bearing in mind these constraints, Hochstadter’s cute little can, and the above imagery, let us know which one looks best.

Art Libertucci

Find out more about how TTB and federal agencies really work, in this discussion with Art Libertucci, from the Summer 2017 issue of Artisan Spirit magazine. Art ran TTB for many years, and had a long career in ATF before that. He has a huge amount of experience when it comes to alcohol beverages, rules, taxes, Washington, and so on.

Here as an excerpt, where Art describes the beginning of this journey.

I started my government career as an Inspector for the Alcohol and Tobacco Tax Division of the IRS. At that time, neither ATF nor TTB existed as separate bureaus. The regulation of alcohol and tobacco products and their taxation were the responsibility of the IRS. I applied for the job after a friend told me about how he was taking an exam for jobs in the federal government. I had been drafted back then in 1969 (I was a draft lottery pick) and that day I was sent home after reporting for duty, having failed my physical exam. My friend told me he was taking the job exam that Saturday and I should go with him and take the test. At that time, taking the test was done at the post office and on a walk in basis. I took the test and received scores a month later. I received my first job offer from ATF, to become an Inspector. I interviewed for the job, was offered a position in Boston, but it was later rescinded due to a sudden federal job freeze. A week later I was called and asked if I would consider the same position in New York City, where they had been given a job freeze exemption. I took the offer and started my career on March 17th, 1970 in New York.

If my math is correct this gives Art 47 years (and counting) of experience, watching the alcohol beverage business from a front row seat.

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