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Posts Tagged ‘legally interesting/controversial’

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.

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alcohol beverages generally


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Hillary on a Wine Label; Donald on Beer

With only two days to go until the second Presidential Debate, Trump and Clinton are clearly on everyone’s mind. Including the beer and wine companies shown above.

The Trump-inspired Blonde Ale label is from 5 Rabbit Cerveceria of Bedford Park, Illinois. It leaves no doubt they are not Trump fans. It says: “STOP THE HATE,” “CHINGA TU PELO” (look it up), “We decided to take a stand against racism,” “BULLIES AREN’T LEADERS.” Frank would love to have a can of this in time for the big event.

The Clinton-inspired Chardonnay label is from Scotto Family Cellars of Lodi, California. They have a couple types, and six approvals. We did not find any Trump-related labels at this company. Perhaps it would infringe on this.

Both seem to be real products and TTB apparently approves of both messages.

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beer, wine


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Another Judge Chimes in on Tito’s

On Tuesday, January 12, 2016, a federal district court in New York granted in part and denied in part Tito’s “Handmade” Vodka’s motion to dismiss several claims brought against it by a class of consumers in the case Singleton v. Fifth Generation, Inc.

Judge Brenda K. Sannes of the U.S. District Court for the Northern District of New York issued the opinion, holding that federal approval of Tito’s labels does not provide Tito’s with a “safe harbor” from litigation, and that Tito’s use of the term “handmade” and the phrase “crafted in an old fashioned pot still” “could plausibly mislead a reasonable consumer to believe that [Tito’s] vodka is made in a hands-on, small-batch process.”

Judge Sannes’ decision to allow Singleton to move forward marks yet another instance of a federal judge finding merit in false labeling claims against Tito’s. Singleton joins Hoffman v. Fifth Generation, Inc. and Cabrera v. Fifth Generation, Inc. (both federal cases in California) as well as Pye v. Fifth Generation, Inc. (a federal case in Florida) and Terlesky v. Fifth Generation, Inc. (a federal case in Ohio), which have all survived motions by Tito’s to cut the cases short.

Singleton is more akin to the two California cases, as the judges in all three refused to apply the safe harbor and held that the term “handmade” is not puffery, and therefore actionable. The judges in Pye and Terlesky, on the other hand, both applied the safe harbor, but held that consumers did state a valid claim for breach of warranty based on Tito’s statement that its vodka is “crafted in an old-fashioned pot still.” Judge Sannes, however, dismissed the breach of warranty claims in Singleton.

 With at least ten distinct cases brought by classes of consumers against Tito’s over the past year and a half, it can be difficult to keep track of how each side is faring. What is clear is that Tito’s has won two cases—Aliano v. Fifth Generation, Inc. in Illinois, and Wilson v. Fifth Generation, Inc. in Alabama—as both cases have been dismissed and the time to appeal has expired. It also seems relatively safe to say that Tito’s has the high ground in Pye and Terlesky, as the false labeling claims have been dismissed, and only the breach of warranty claims remain. What is less clear, however, is how Tito’s will fare in Singleton, Cabrera, and Hofmann, all of which are all moving forward on the plaintiffs’ mightiest claim—that they were deceived by Tito’s use of the term “handmade.”

Because Singleton survived (in part) Tito’s motion to dismiss, Tito’s will have to answer the consumer-plaintiffs’ claims. Tito’s will, however, have another chance to dismantle the plaintiffs’ case before it goes to trial, by filing a motion for summary judgment. Tito’s tried this in both Cabrera and Hofmann, but was unsuccessful. As for the three other cases against Tito’s (not listed here), the relevant courts have yet to rule on Tito’s motions to dismiss.

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vodka


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Cannabis Labeling

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Is it just a matter of time before TTB is scutinizing cannabis labels — for sneaky references to — wine?

I hope so. That would be great.

This article about cannabis beer got me to thinking about all manner of cannabinoid-related issues.

Did TTB approve the label yet? Not that I can see. I don’t find any Indica label approved for this Colorado brewery so far. But I do find this Dank label, which is pretty close. The label mentions a run-in with “the man” and pounds of resinous west coast Cannabacae. Dad and Dudes (the brewer) did a wonderful job of securing some trademark rights in this important term (DANK) sure to be much and more in demand in the future. But the label oddly implies that the company has a trademark registration on the term DANK in and of itself, when it does not appear that anyone does. I wonder if D&D’s registration will be sufficient, someday, to block pot purveyors from using the term DANK as part of their branding, and if pot will be considered highly-related to beer/wine/spirits.

Thanks to LabelVision, it’s quite easy to see that TTB has allowed only two “cannabis” labels so far:  vodka with cannabis sativa, and Cabernet Franc with notes of cannabis (“pairs well with baked food or an after dinner smoke”).

There are quite a few Indica labels (not including the one in the drinks business article). There are plenty of pot labels wafting around already, and it seems clear there are many more on the way, in one form or another.

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alcohol beverages generally, marijuana


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Bad Medicine, Good Disclaimer

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There should be no doubt that a solid disclaimer can help make your label ok. And if there was, the Bad Medicine brand of spirits should put it to rest. In at least two places, the Bad Medicine labels say “The name Bad Medicine does not refer to any claimed health benefits.”

Not so long ago, it would be unthinkable that TTB would allow “medicine” or “health” talk — outside the mandated Government Warning. But the case law keeps changing, and so do the labels, along with it.

What other disclaimers are out there (beer, wine, spirits) and what ones should be?

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alcohol beverages generally


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