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Colors: In Alcohol Beverages

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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).

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Once we verify we are in fact talking about a color, you would proceed as here.

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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.

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Then there is more help, off to the right, with more links.

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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.

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What’s New at Moonshine U.?

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The latest issue of Beverage Master just came in last week. It is the October-November issue and has a fine article about Moonshine University, if I may say so myself. A small excerpt is below, and you can find the entire article, and indeed the whole issue, here.

previousThere is a lot of talk about Moonshine University, launched in early 2013. As this Louisville, Kentucky training center moves toward year five of educating new distillers, I contacted some of the principals, to see how it’s going. The questions are from me, and most of the answers are from Christin Head, Registrar at Moonshine University.

1. What is Moonshine University?

Moonshine University is an artisan distillery and education center located in downtown Louisville, Kentucky. Our distillery is adjacent to our state-of-the-art classroom and is set up for small runs and hands-on distilling training. We offer technical training and business management education for start-ups, industry professionals, and those looking for careers in the distilling industry. Our courses are designed and taught by distillery shirtoperators, industry insiders, and world-renowned master distillers.

2. When did it start and how many classes so far?
Moonshine University opened in January 2013. We have just completed our thirteenth session of our flagship course, the 5-Day Distiller Course. All in all, we have held 67 classes at Moonshine University, with an additional 19 classes currently open for registration.

3. How many graduates?
Since 2013 we are happy to say we have had over 1200 students cross our threshold. We have over 600 attendees in our professional level classes, which includes the 5-Day Distiller Course.

If you are not already getting this bi-monthly craft spirits and brew magazine, it is easy to subscribe, here.

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Most Helpful TTB Website Pages

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TTB’s website at www.ttb.gov can be pretty helpful. Here are a few of the pages we check most often.

  1. TTB Newsletter. This comes out about once a week and can be very useful. For example, the August 19, 2016 edition provided background information about Tom Crone – with 53 years of federal service!
  2. Formula Tool. Don’t guess about whether you need a formula approval. If you guess, you are likely to be wrong because it’s not always intuitive. For example, why does all sake need a formula approval (and lab analysis) – when other fermented rice beverages (such as beer) don’t? If you make this mistake, it can be time-consuming and costly. With this tool, you can check most any class/type, and get a better view of what needs a TTB formula approval, and what does not.
  3. FAQs. TTB here answer dozens of common questions. One example is, what is “pear cider”?
  4. Public COLA Registry. This is a good place to look up all or almost all recent COLAs. At this point it goes back 20 years or more. We say almost because it does not cover wine coolers, kombucha – or other products that happen to be alcohol beverages, but don’t fall within TTB’s labeling jurisdiction. Last time we checked, this database had images back to around 1999, and text only results back to about the 1980s. With some creativity, you can find all COLAs for your competitor, or all whiskies made in Hawaii, etc. The same database can be a lifesaver when it comes to trademarks. Though this resource is good, for some things ShipCompliant’s LabelVision is even better.
  5. FOIA. This page is particularly helpful because it links to such crucial information as what are other people asking TTB to provide by way of Freedom of Information Act disclosure, most issued permits, and the Electronic Reading Room.
  6. APTs. TTB does a pretty good job, here, of showing how long the typical label, or permit, or formula takes (the “Average Processing Times”).

We could go on. But we are not sure you want us to. If you know of other great pages, within or without ttb.gov, let us know.

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VABC Allows “Self-Distribution” for Virginia Distillers

The Virginia Department of Alcoholic Beverage Control Board (VABC) will now allow Virginia Distilleries to “self-distribute.” Previously, restaurants were required to purchase all spirits through their assigned VABC Store. Now, VABC has authorized distilleries to sell directly to restaurants.

Unfortunately, restaurants will be required to physically go to the distillery to purchase the spirits (delivery from the distillery is not allowed yet), but it is still a move in the right direction for Virginia to compete with Maryland and Washington D.C.’s more favorable distillery laws.

This change occurred within the past couple of weeks. We have not seen any explicit law change, but through discussions with the VABC and knowledgeable distillers, we understand that this is an important change in interpretation of existing laws.

Peter Ahlf, of Mt. Defiance Distillery, in Middleburg, Virginia was excited about the new allowance, because now it allows for greater distribution of some of their rarer, craft spirits. He said:

Not everything we produce is available in VABC stores, so this lets local restaurants come straight to us and purchase those seasonal and rare products. We would no longer have to drive small orders to Richmond, just to have it shipped back up to the VABC store down the street.

Virginia has been slowly broadening sales allowances for distilleries. We look forward to seeing whether this leads to more, and more successful craft distilleries nearby.

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Johnny Love Vodka Wins “Sexy Lips” Trademark Appeal Against Jim Beam

Johnny Love Beverage Company LLC (“JL”) and Jim Beam Brands Co. (“Beam”) are fighting over the right to use “sexy lips” imagery on flavored vodkas. JL’s logo (the subject of U.S. trademark registration no. 4,044,182; shown below left) dates back to 2005, and is described by Johnny Love’s creator and namesake Johnny Metheny as “definitely sexy.” Metheny apparently felt the same way about Beam’s new logo, adopted in 2011, (shown below right), and sued Beam in federal district court for trademark infringement, false designation of origin, and unfair competition.

jllips After filing suit, JL promptly moved for preliminary injunctive relief, essentially requesting that the court order Beam to stop selling products with Beam’s new logo during the pendency of the trial. Beam cross moved for summary judgment. The district court denied JL’s motion, and, in a surprise move, sustained Beam’s motion, dismissing the case and holding, “For reasons articulated in the Order denying the Preliminary Injunction, the Court determines that no issues of material fact remain which could provide Plaintiff a basis for success on any of its claims.”

beamlipsJL appealed the district court’s decision to the 9th Circuit Court of Appeals and, on July 14, 2016, the 9th circuit court issued its ruling, reversing the district court. The circuit court held that the district court improperly applied the preliminary injunction standard to Beam’s motion for summary judgment. The circuit court pointed out that “both [logos] have puckered, human lips as the focal point of their design; the lips have a similar angle and shape; and the lips are color-coordinated with the flavor of the vodka.” Accordingly, the circuit court found that a reasonable fact-finder could determine that Beam’s logo was confusingly similar to JL’s logo and that summary judgment was, therefore, inappropriate.

Most observers know that a lot of the good words are taken, when it comes to that delicious intersection of beverages, brands and trademarks. This case is a useful reminder that a lot of the good images (some but not all sexy lips!) are taken, as well. It is also a prime example of a little guy scoring big points on a behemoth. Judge Wallace mentioned:  “Jim Beam instructed its legal counsel to perform a clearance search for lips designs. The legal department found 40 references to lips for alcohol-related products.”

Note: With JL having now ultimately survived Beam’s motion for summary judgment, experience tells us that it would not be surprising to see the case quietly settle in the near future, with Beam moving to a design less similar to JL’s (not less sexy, just different sexy).

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