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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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alcohol beverages generally, whisky


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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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Big Formula Changes at TTB

formula

TTB put out Ruling 2016-3 at the end of September. It relates to spirits formula approvals, and is intended to cut some of the burdens for spirits companies and for TTB. It’s also sort of long. Word says it is 3,573 (carefully chosen) words. My mission is to break it down to 15% or less.

The gist is, TTB will help you avoid formula approval for many products in these big categories: vodka, rum, whisky, brandy. Some details, on each category, are below. If you want the whole story, you can go to the Ruling, and the elaborations at Industry Circular 2016-1 (for imports) and Guidance 2016-3. Rather than knocking out the formula approval requirements in the spirits regulations, TTB explains: “TTB will not accept for review new formulas submitted for products approved under this ruling. This ruling serves as the approval that is required by §§ 5.26, 5.27, and 19.348.”

  1. Vodka. The Ruling takes advantage of the fact that vodka already has a narrow standard of identity and explains that if you are clearly within it, the Ruling should be used instead of submitting a formula. Only a bit of sugar and citric acid allowed.
  2. Rum. The standard is not quite so narrow, as compared to vodka, but it’s apparently narrow enough. If you only add a bit of sugar, molasses, caramel, the Ruling should be used instead of submitting a formula.
  3. Whisky. The rule is similar, as to whiskey — except for the reminder that neither straight whisky, nor bourbon whiskey, can have any additives (with or without a formula). The former because that’s a big part of what straight means. The latter because the Bureau decided it is not (and should not be) customary to put additives in bourbon.
  4. Brandy. If you only add a bit of sugar, caramel, fruit juice, wine, the Ruling should be used instead of submitting a formula.

TTB does reserve the right to look into this further, as needed, on a case-by-case basis. The Ruling “provides immediate relief from the formula submission requirements for these specific products.”

TTB took a similar action with respect to malt beverage formulas about two years ago. This must have helped, because TTB later expanded this to other malt beverage products. TTB has also, at the end of September, expanded this approach, to wine. We have covered the beer issues in the past, we are covering spirits here, and may cover the wine issues in the future. I am guessing Ruling 2016-3 cuts several hundred formulas per year. LabelVision says TTB approved 748 vodkas in the most recent year (this is a count of label approvals, for unique brand names, on products coded as vodka, since most formula data is not public). A svelte 446 words.

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Bacon Labeling 101

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After a full day wrangling booze labels, I heard a good story about bacon labeling on the way home from work (bringing home the bacon, as it were). The radio story emanated from a Bloomberg web story, “Why Supermarket Bacon Hides Its Glorious Fat.” The story touches upon the intersection of our love-hate relationship with fat and with government, and also upon labeling issues and wily businesspeople. Explaining that bacon has “one of the most unusual and underappreciated packaging formats of any supermarket product” it says:

The standard one-pound package shows the bacon slices fanned out, with only their leading edges exposed. The industry term for this is a shingle pack—a reference to the way the slices overlap. Because those front edges tend to feature more lean muscle than the fattier back edges, and because the face of the top slice is invariably covered by a paperboard flap containing the manufacturer’s logo and other branding information, the consumer sees a relatively unbroken field of red protein, creating the illusion that the bacon is leaner than it is.

Lest the bacon packaging hide the fat too much, the U.S. government requires the packaging to show the real story, at least on the back window. The window allows the consumer:

to see how the bacon truly looks in all its fatty glory. … [T]he shingle pack doesn’t just present an idealized bacon fantasy—it also provides a built-in reality check. It’s hard to think of another package that engages in such a clever sleight of hand on the front and then gives away the game on the back.

The story also has a nifty video about the machinery used to slice the bacon slabs optimally. In a radio version of the story, Lukas says the shingle pack is “ingeniously deceptive.”

And if you don’t think bacon shingles have a lot to do with booze marketing, you should take a peek through this window.

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food


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