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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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Gluten

We wanted to check in and see what’s been happening with gluten claims, in connection with alcohol beverages. LabelVision data shows virtually no references to gluten until 2012. Then, TTB approved the first label with a nice, clear reference to “gluten free.” That label is below (potato vodka, brand name Spud). After rapid growth, from 212 to 2016, the gluten references seem to be leveling off, so far in 2017, at about 2016 levels. TTB’s policy is here (TTB Ruling 2014-2, Revised Interim Policy on Gluten Content Statements in the Labeling and Advertising of Wine, Distilled Spirits, and Malt Beverages).

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How Old is that Old Charter?

The plaintiff in a would-be class action lawsuit against Sazerac voluntarily dismissed all his claims in late January, ending the litigation. The case (Parker v. Buffalo Trace Distillery, Inc. et al.) began in November of last year, and concerned a subtle change on the label of Sazerac’s “Old Charter” brand of bourbon whiskey. The older and newer labels are above, side by side.

Among the various changes, the old label says, “AGED 8 YEARS,” while the new label simply displays the number “8.”

Plaintiff Nicholas Parker alleged that the Old Charter bourbon sold under the new label was no longer aged for 8 years, and that Sazerac’s continued use of the number “8” on the label caused consumers to believe that the bourbon was aged for 8 years. Sazerac responded with a motion to dismiss the complaint, alleging that Alcohol and Tobacco Tax and Trade Bureau (TTB) approval of the label provided Sazerac with a “safe harbor” from Mr. Parker’s claims.

Just two weeks after Sazerac filed its motion to dismiss, Mr. Parker voluntarily dismissed the action. This voluntary dismissal meant that the court did not have to rule on the merits of Sazerac’s safe harbor defense, or Mr. Parker’s claims. If the Tito’s “Handmade” Vodka cases are any indication, it is likely that the safe harbor defense would not have insulated Sazerac in this case. It would seem that the parties reached a settlement, although the terms of any such settlement will likely remain private. Old Charter drinkers should keep an eye out for future label changes, which might indicate the terms of a settlement reached.

The voluntary dismissal notwithstanding, Mr. Parker’s claims raise an interesting issue: Shouldn’t TTB have a policy for this sort of thing? As it turns out, TTB does. TTB’s general stance has been that unexplained numbers on spirits labels are prohibited. That is, if you want to say “8,” you need to explain the significance of the number (e.g., “AGED 8 YEARS,” or “A BLEND FROM 8 BARRELS”). Take Jack Daniel’s, for instance:

While the number “7” appears prominently, the context (i.e., “Old No. 7 Brand”) makes it clear enough that “7” is part of the brand name, not the age of the spirit.

Re-examining the Old Charter labels, the new label does not seem to fall in line with TTB’s tenet. Although Sazerac’s incorporation of the unexplained “8” did not lead to a label rejection in this instance, it probably goes a long way toward explaining why Mr. Parker pounced on Mr. Brown.

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Aged 12 Seconds

The whiskey rules are pretty strict when it comes to straight whiskey. It has to be aged two years or more, in oak. But for many other types of whiskey, the rules have gotten pretty lax, and it seems like it only has to be aged but a moment.

Where you have a whiskey not designated as straight, it’s ok to age it let’s say one month, but the regulations require an age statement, any time the total age is less than four years. Here are a few examples of such age statements, roughly from shortest to not so short.

In many cases, the age statement is fairly small, on the back, mixed with other text, or some combination thereof. If you prefer whiskey aged more than “a very short time” — you may need to keep your eyes peeled, or just look for straight whiskey. Let us know if you see other good examples.

The full regulation is here and a key excerpt is in the image below.

Finally, TTB has a helpful FAQ here. It tends to say this sort of thing is no longer ok. Not ok because it tends to overstate the age (AGED LESS THAN TWO YEARS). It is hard to know whether it’s aged 12 seconds, 1.99 years, or — 0.00000038052 years.

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Keep this Beer Away from Lederhosen and KFC

heavy

Right there on the label of this beer, almost every part of it, Austin Beerworks makes it clear that you should proceed with maximum caution. You should not even think about consuming this beer with KFC, while wearing lederhosen, or while operating heavy machinery of any sort.

The label is not new, but it is a tad out of the ordinary. It pokes gentle fun at the oh so serious Government Warning Statement, mandated by Congress since the 1988 Alcoholic Beverage Labeling Act. In the early years, after this Warning became required on most every beer, wine and spirits label in the U.S., it would have been essentially unthinkable, to allow any fun-poking, aimed in this general direction. To wit, one of the Government’s biggest objections to the Black Death Vodka labeling and packaging, was that it tended to mock the — oh so serious Warning. This label shows that a lot of beer has flowed under the bridge since then, and there has been a general chilling out.

It probably also helps, that the real Warning does appear at least twice, and with good, solid prominence and contrast. But, that base having been covered, Austin revs up for a snarknado. I can’t list all the snarky comments and warnings, because there are so many. But some of my personal favorites are that this beer should not be paired with:

  1. Lederhosen
  2. Eyebrow tweezing
  3. Bro-tazing
  4. Edible underwear (or other underwear, such as bras)
  5. This
  6. Putting baby in a corner
  7. KFC

The full brand is Austin Beerworks Heavy Machinery IPA, and the approval is here. Apart from the modest legal issue noted above, I hasten to add that I have a small, personal connection to this label. Christian Helms is the man behind this label and many other high-end alcohol beverage labels. I went to see him once, in Austin, to try to get help on a big legal and design project. As he sat behind his big screen, with lots of Texas light streaming in, he was willing to talk — but he was not willing to take on the project. At any cost. In 30 years since law school, I have rarely seen a professional who won’t consider any given project, if the fee gets high enough. He was not interested, at any price. One part of me is disappointed, and the other part gives him credit for his decisiveness (not to mention his good sense when it comes to mixing beer and bro-tazing).

Please let me know if you see any other funny, or unusual warnings out there.

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