Archive for March, 2017
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.
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.