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Help TTB Break the Logjam (Free the Labels)

In this blog, every now and then, we talk about how the label and formula system at TTB can be quite slow, despite various TTB efforts to streamline things. Some top examples are here:  101 Days (to get a spirits label approved); Streamlining; Sen. Schumer Says Labels Take Too Long; more streamlining. It is not a pleasure to observe that it can take more than five months to get an ordinary French Vodka approved (30 or so days at the TTB Lab, then 60 or so days to write up the formula approval, then 60 or so days for label approval — to say nothing about potholes and glitches along the way). Add a few weeks if you’d like to add a flavor.

For a change, today let’s give TTB a break and talk about what the submitters can do, to help speed things up. We will also cover what applicants should not do. Many of the same principles apply to both labels and formulas.

Applicants should:

  1. Start early. TTB and others do a pretty good job of showing the updated average processing times (APTs), for labels and formulas, so it should come as a surprise to nobody that both processes can take a very long time. Why not start early? This can help the system because it leads to fewer panicked status checks. It also should mean fewer expedite requests. Such requests can put a lot of stress on the system, tie up a lot of resources, and they can also mean other applications are jumping in front of and slowing down yours.
  2. Put in solid applications. It’s not so hard to put in a good application, especially if you are only handling one commodity (such as only domestic wine or only imported beer). An example would be knowing what kinds of products need formula approval prior to label approval, then attaching the formula approval to the label. TTB calls such applications, without errors or omissions, “perfected applications.” More than 43% of all label applications go back to the applicant as “needs correction” (see page 3 of the PowerPoint here). When all such labels are counted — submissions and resubmissions — TTB gets about 250,000 label submissions per year. TTB only has about one beer reviewer and 1-2 spirits reviewers — so this can sometimes be a very heavy load. If you think it’s easy, you are not paying attention; you can submit any old thing but the government has the burden to give a thumbs up or a thumbs down (and not just a maybe) to every one, under hundreds of pages of rules.
  3. Read the rules. In the days before the internet maybe you had a good excuse not to skim the rules. But with the rules essentially at your fingertips, free, you should probably do your part to peruse the rules before complaining that TTB is too slow. If you don’t want to read the rules you should probably hire a lawyer or consultant.
  4. Get familiar with ARTAL. This is the Allowable Revisions to Approved Labels. It can save you and TTB a lot of time. There is no reason to wait 6 weeks for a label approval, and inflict the extra work on TTB, when all you are doing is changing the alcohol content. On the formula side, when you have small changes that don’t impact labeling, you can save yourself and TTB a lot of time if you supersede rather than start anew. Otherwise, submitting a new formula usually, in turn, would trigger a new label approval.

Applicants should not:

  1. Submit for products they have no real intention of selling. Only a small percentage of all the products that go through TTB ever end up on store shelves. TTB has said it’s research tends to show that the number is as low as 10%, which would mean that the label and formula division is using more than 80% of its bandwidth on things that never go to market. In many ways the online systems have made it too easy and too inexpensive for applicants to dump work on TTB. In the olden days, the applicant at least had to pay for a stamp or FedEx, and now the system is free (if you ignore the time it takes to load the data and wait).
  2. Cry wolf. If you want to use up TTB’s time telling them it’s urgent, you should have a very good reason, and it should be a whole lot better than:
    1. we can’t sell without the approvals (too obvious, and applies to everyone in front of you in line as well)
    2. we can’t pay tax until we get the approvals (I am pretty sure TTB is not excited about the prospect of collecting a few hundred dollars in tax from you, especially when the same tax dollars are otherwise likely to get put in the till by another guy who planned ahead a bit more)
    3. an exaggeration
  3. Jam up the system with status checks or vague inquiries. There is rarely any advantage in contacting TTB about the status of a pending item, unless it’s well past the published norms. To the contrary, such requests (even when clear, polite, and when they include the ID numbers) mostly tie up the phone lines and scarce TTB resources. An especially detrimental variation is the vague status request. A good status request would be a few days after the APT, with the ID number, such as “Why is label ID 14018001000065 taking so long?” A bad status request would be, “We put in a chardonnay label a few days ago, can you check on it, it should be easy because only a few words changed, and you can find it under Jones Winery, in Napa. No I don’t have the ID number or permit number handy.” With the old, paper-based system there was at least a small chance your paperwork was stuck at the bottom of a forlorn tower of paper; in the current age there is almost no chance that the computer lost track of your application.

With this as a starting point I hope others (Ann, Deb, Marc, Teresa, Fred?) will jump in with ideas about what the industry can do to help push the wait times lower, for the benefit of all.

Coke Gets Served (and Pommelled)

Last week’s U.S. Supreme Court decision, Pom v. Coca-Cola, is not just about juice. It has massive implications for small brewers, big distillers and all other alcohol beverage marketers. It shows that TTB rules and other agency rules set a floor, not a ceiling, on how companies need to market their products. It shows that the government is only a part of the web of review, in concert with competitors. Just as we predicted that Pom would win this case, we now predict that some alcohol beverage companies will soon take legal action against others, even though such cases, other than trademark cases, were very rare in the past 50 years.

It was bad enough for Coke when Pom called out Coke for going quite a bit too far in posing its apple juice as pomegranate juice. It got even worse when various Supreme Court Justices suggested, orally, that Coke was trying to trick people. And on June 12, 2014 it got even worse, when the Supreme Court unanimously disagreed with Coke’s position. In Pom v. Coca-Cola, the Court said, if there is trickery on food labels, and it hurts a competitor, of course they can do something about it, even if FDA (for whatever reason) does not.

Pom and the Supreme Court have made it clear that one company can go after another for dubious labeling, and the government no longer has all the authority in this area.

The Court said, rather than the Food, Drug & Cosmetic Act (FDCA) knocking out the Lanham Act, the two Acts can happily coexist, complement each other, and provide synergy. The former protects consumers as to health and safety. The latter protects competitors as to commercial interests.

We have lots more coverage of this important case, and the background, in this post from earlier this year.

Coke went astray fairly early in the multi-year litigation, trying to invent a theory under which FDA “approved” the label at issue. FDA did no such thing. To approve is an act, and FDA’s posture here was the opposite of an act. FDA did not condone, approve or disapprove the label at issue. Perhaps FDA was busy with many other pressing concerns, or it was a gray area. This is in stark contrast to how TTB handles most labels — with a rigorous, case-by-case, and explicit pre-market approval regime. To say that FDA approved the Minute Maid label is like Donald Trump getting one $500 haircut per week, every week, calling it a business expense and taking an IRS deduction for 10 years — then saying the IRS approves of his hairstyle and his deduction. The IRS would, of course, have done no such thing. Rather, it would be the case that the IRS, simply, had so far refrained from any adverse action. To use the terms in the opinion, there is a difference between approving something and merely tolerating it.

There are not a lot of juicy quotes in the opinion, but the case does have massive implications. The Court noted, in a realistic way, that:

FDA … does not have the same perspective or expertise in assessing market dynamics that day-to-day competitors possess. Competitors who manufacture or distribute products have detailed knowledge regarding how consumers rely upon certain sales and marketing strategies. Their awareness of unfair competition practices may be far more immediate and accurate than that of agency rulemakers and regulators. Lanham Act suits draw upon this market expertise by empowering private parties to sue competitors to protect their interests on a case-by-case basis.

It is very refreshing to see Washington give some credit to those who work in an industry long-term, every day. The huge implications of this case would seem to be:

  1. A massive shift of enforcement authority, from bureaucrats in Washington, to private parties all around the world. Professor John Duffy noted:  “A second important point about POM is that the reasoning in the decision shows the Supreme Court’s increasingly ambivalent approach to administrative regulation.  More than a century ago, administrative agencies were often cast in nearly heroic terms; they were thought to be wise experts who could bring intelligent, centralized regulation to remedy the abusive marketplace tactics.  In yesterday’s decision, however, the Court shows just how little is left of that notion.” Duffy nails it, saying: “It is … hard not to think that some of the reasoning in this case reflects a new skepticism – or perhaps it should be described as a healthy realism – about the capabilities of administrative agencies.”
    1. Justice Roberts, in the oral arguments, actually said, in reference to misleading labels:  “What does the FDA know about that? I mean, I would understand if it was the FTC or something like that, but I don’t know that the FDA has any expertise in terms of consumer confusion apart from any health issues.”
  2. The ready ability of Coke to police Pepsi’s business practices, Bud to police Coors, Gallo to police other wine companies, Bacardi to regulate Diageo — on and on. Not only can the big regulate the big, but the small can regulate the big and vice versa. It could be a free-for-all. Duffy explained that this case, along with another:  “is almost certain to produce a significant expansion in competitors bringing Lanham Act claims against each other over false or misleading statements.”
    1. Even more, this means little craft brewers and distillers can go after big guys with a claim that:  “you are BS’ing about craft, and it hurts us.”
    2. An advertising law expert said:  “It opens the floodgates to increased litigation. The message to marketers is now that compliance with the FDA is only a first step and is by no means insurance against other types of claims.”
  3. This will give us a bit of a taste of what libertarian-style government might look like, and a bit of relief from command-and-control government, perhaps.
  4. Even though there is affirmative pre-market approval for alcohol beverages, and this is not the case for most foods and other beverages, it would seem that the same basic principles apply. It would seem that the FAA Act was likewise not intended to impair or preclude the Lanham Act.
  5. On behalf of food clients, food lawyers now get to serve as mini-FDAs, and private TTB lawyers have been deputized to serve as mini-TTBs (on behalf of any aggrieved beverage company clients).
  6. This makes it easy for TTB and FDA to deflect many complaints, and remind the aggrieved that they have a ready means for self-help.
  7. After many decades to the contrary it may turn out that the federal food and beverage laws are a floor, rather than a ceiling. CSPI said:  “The Court recognized that companies don’t have a safe haven from being sued for deception just by complying with FDA’s minimal regulations.”

It will be ironic indeed when a competing food company goes after Pom. But Pom seems more than able to protect itself and I have rarely seen a better example of a company being on the defensive, after the various FTC inquiries — and turning it into such a major victory. There should be a cliche about turning bitter fruits into profitable fruit juices.

TTB Eases Way Up on Formulas for Many Beers

There is some big news from TTB, via dcbrewlaw. TTB has recently decided to ease up on the formula requirements for malt beverages made with common ingredients and processes such as some barrel aging, as well as various fruits and spices. This should help considerably with TTB’s overwhelming workload, and the related delays.

At dcbrewlaw, Dan reports:

There is good news for brewers who are tired of waiting for formula approvals from TTB (currently 74 days):  you may not need it. On June 5, 2014, TTB issued a fairly significant ruling, Ingredients and Processes Used in the Production of Beer Not Subject to Formula Requirements. The ruling clearly spells out which Exempt Ingredients and Processes are now deemed “traditional” and, therefore, do not require a TTB formula approval.

The new ruling expands upon the rules as of 2013. Here are two good examples of products that needed formula approval under the old rules, before this week, and will continue to need a formula approval prior to label approval:  Bud Light Lime; Joose. By contrast, here are two products that would no longer need formula approval:  Bourbon County, Harlem. On each, the formula is highlighted in yellow. Read more about TTB Ruling 2014-4 at dcbrewlaw and TTB’s site.

101 Days

101

A short while ago I went to see why “that easy label” is still pending, after filing it while snow was still on the ground and waiting well past spring, into summer. I was shocked* and horrified to see the above. The average processing time for spirits labels is now, as of today, way past a month or two. I am startled to see it’s past 100 days. I don’t recall it ever getting past 45 days or so, back in the days of shutdowns, Rep. Gingrich fighting with President Clinton, Tea Partiers fighting President Obama, and so forth. I find myself talking about the same pending labels, over and over again, week after week and month after month.

It is starting to feel like a crisis for many spirits companies, so far as I can tell. Maybe the big ones can plan around this and tolerate this, but waits of this magnitude are devastating for most companies, from what I can see. Why all of a sudden? Wasn’t the power of the internet and computers, and streamlining, supposed to do approximately the opposite? For those highly interested, we have an internally prepared chart showing how this has gradually or not so gradually gotten worse over the past 7 years. It is available upon request.

May 30, 2014 Updatethis now says 69 days, rather than 101, and though painful, that makes a lot more sense.
June 1, 2014 Updateonly 62 days!

My main purpose in grabbing the above screenshot is to hold out the vague, possibly naive, hope that this will mark the low point, and things somehow will get better from here. I look forward to the day when it will be hard to believe it ever took more than three months to get an “easy” whiskey label approved. Just like it is now hard to believe it ever took less than a few days (way back, decades ago). On a brighter note, it is currently taking less than a month to get a wine label approved.

* Even though the number above clearly says 101 days, and the labeling division’s phone message says the same as of today, it seems this can not possibly be correct based on the date to the right of the total. In any event, something is clearly wrong, in a protracted way. Though all this is fairly hard to believe, it is clearly true that TTB approved 667 DSP labels in the 4/26 to 5/26 period of 2013 — and only 41% as many in the same time period of 2014 (272 labels). In the same month of 2012, TTB approved 731 spirits labels. This spirits label, by way of example, took nearly six months.

Spirits Make the World More Beautiful

lemon

I have not looked at The Dieline in a while, so it’s time to catch up. This website does an excellent job of showing the best and most creative package and graphic design from around the world.

I am struck by what a huge percentage of the posts relate to food packaging — and alcohol beverages in particular. Below is a fairly random sampling, the last 27 posts, covering the past five days (in September of 2014). Fully 11 of 27 (40%) directly relate to alcohol beverages; I put those in black. The other foods are in medium blue, and the unrelated posts are in light blue.

  1. Coffee beans
  2. Juice
  3. Beer
  4. Mezcal
  5. Tattoos
  6. Lemoncello
  7. Gewurztraminer
  8. Rum
  9. Gardening products
  10. Biscuits
  11. Whisky
  12. Juice
  13. Playing cards
  14. Energy drink
  15. Chopped tomatoes
  16. Chocolate
  17. Salsa
  18. Chocolate
  19. Water
  20. Fruit bars
  21. Oat drinks
  22. Beer
  23. Spirits
  24. Spirits
  25. Invitations
  26. Wine
  27. Wine

The Dieline’s tag for all beverages is here. Which ones seem best and worst to you? This one is pretty darn good in my opinion. Also, this Skyy label, which seems to glow in the dark and react to the music, is nicely done.

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