I do believe this Olde Bay Saison label raises at least a few legal issues. First of all, I sure hope the brewer had permission to use this famous branding. McCormick owns the Old Bay seasoning brand and probably would not have a sense of humor about any unauthorized uses. Even if the beer is loaded up with the same seasoning, and even if the reference tends to be flattering. I can not imagine that changing one letter (from Old to Olde) is likely to help any more. The total production for this ale with spices seems to have been tiny, so that may help somewhat more to avoid problems.

A second legal issue is that, such a beer needs formula approval, before label approval and production. To get formula approval, it is usually necessary to provide a detailed ingredient list to TTB. It can be very difficult for anyone to get ingredient details (beyond what FDA typically requires on a food label’s ingredient list) about famous and protected products like Coca-Cola, Angostura Bitters, or Old Bay. TTB typically needs to check for artificial flavors, allergens, colors, and use-rate limitations, and this can be very difficult to do without a complete ingredient list of the sort that McCormick would be unlikely to provide to the brewer here (The D.O.G. Beverage Co. of Westminster, Maryland). So this raises the question of whether this beer actually contains Old Bay seasoning, or TTB did not require details about all 18 ingredients, or D.O.G. somehow got hold of the ingredient list.

Related Posts:

• Intoxicating Candy: Bubble Gum (2)
• Happy Ten Ten (0)
• Wine Without Sulfites (9)

Because the term “Molotov Cocktail” has been so widely used (for at least 70 years), I would have expected somebody to grab onto it and apply it to alcohol beverages sooner. It was not until July of 2011 that somebody grabbed onto it, as in the case of Evil Twin Brewing above. In this case the name relates to the “explosive” and “arrogant” amount of hops in this beer. A few years earlier, Molotov Hoptail had roughly the same idea. Hoptail gets extra points because the brewpub is just down the street and a delightful addition to the neighborhood.

I probably would have expected the term to get applied to something more akin to a traditional “cocktail” and less akin to a traditional beer. But perhaps TTB would have been concerned about the use of cocktail-type language on a spirit that is other than a “recognized cocktail.” TTB has various rules about recognized cocktails, such as pre-mixed margaritas, daiquiris and the like. For example, the BAM says a daiquiri must contain rum and lime, and a margarita must contain Tequila, triple sec and citrus. A few of these cocktails are vaguely reminiscent of the above, at least as to sound: Black Russian, White Russian, Brandy Alexander, Bloody Mary.

Related Posts:

• TTB Products from Majority Muslim Countries (0)
• Good Flags and Bad Flags (0)
• Founding Fathers Beer (0)

Continued from Part 1 of 2

AJ’s next target is MGD beer. “Probably the most blatantly illegal advertisement came in early 2009, when a new beer called MGD 64 (boasting just 64 calories) sponsored an online fitness program…” With a claim like that it would be nice to know what makes it “illegal,” if not the imagery of “a thin, toned brunette in a party dress, smiling brightly as she showed off the beer-sponsored body that users could obtain if they joined.” With little analysis or evidence, AJ summarily concludes that the marketing is “patently false and misleading.” By contrast, in my opinion, if you are going to strip most of the calories and body away from a beer, down to a puny 64 calories, you darned well have the right to market it as only 64 calories (especially when the same amount of milk, apple juice or regular beer would have 2-3 times as many calories).

The “Industry Watchdog” lays much of the blame for this sorry state of affairs at the feet of the industry’s failure to properly regulate itself:  “Finally, the most important reason for the breakdown in regulatory oversight is the continuing charade of voluntary self-regulation.” AJ says the industry has “created a system of codes, largely designed to convince policymakers they do not need to intervene, and that the industry can monitor itself” and the system is not working. But AJ would be no happier to have TTB calling the shots. AJ claims that “The government officials at TTB have little to no expertise in health. A better choice might be the Food and Drug Administration (FDA).” AJ provides not a scintilla of evidence that FDA would or could do any kind of a better job with a single one of the issues noted above. FDA might be far more likely to allow vitamins in vodka and on the label. FDA does not police the term natural more strictly compared to TTB. FDA would not be likely to restrict the use of organic claims or disallow MGD from marketing itself as low in calories.

In view of the weak examples set out by the report, and with few if any meaningful health claims getting past TTB, it is a wonder to behold what more rigorous enforcement would look like. Should the government ban imagery associated with sound, ripe fruits (because they are “wholesome” and booze is not)? Should Baileys be stripped of all rights to mention dairy cream (because it’s commonly associated with healthfulness)?

Last but not least, AJ sets its sights on the First Amendment. AJ claims:

Another charade in which the industry engages to keep regulators at bay is to argue that the free speech clause under the First Amendment protects companies from any government regulation of advertising. This makes for good political posturing, but from a legal standpoint, it’s simply not true. The First Amendment does not protect deceptive advertising. The government can and should stop such practices.

This would be damnable if it were true. Is anyone arguing the First Amendment protects companies from all advertising regulations? The part that’s simply not true is to suggest that a meaningful number of alcohol beverage companies make this claim. I am not aware of any alcohol beverage company above a handful of employees that has or would make an extravagant claim of this sort. Most of them favor and support a wide variety of sensible controls on labeling and advertising. To put things in perspective, Dr. David J. Hanson has a detailed overview of AJ and Marin (and its funding, methods and history) here. He explains that it’s nothing new for the group to “[crusade] against First Amendment constitutional free speech rights” in pursuit of its prohibitionist agenda.

It’s not like I left out the better examples, or the better arguments. With even the protein-infused vodka (Devotion), where is the actual, documented harm, as opposed to some vague possibility? I would have liked to find more in this report with which I could agree. I do agree with the premise that alcohol beverages still, after all these years, can raise difficult societal and public health issues, and need to be regulated with seriousness and care. But because the AJ report relies so much on exaggeration, distortion and weak examples, for me the report succeeds mostly in showing there is not a substantial problem related to health claims by alcohol beverage companies.

AJ Report on Health Claims

Related Posts:

• AJ Report on Health Claims, Part 1 (2)
• Ugly American Beer (2)
• TTB Products from Majority Muslim Countries (0)

Back in June, Alcohol Justice issued a report entitled “Questionable Health Claims by Alcohol Companies.” I was pretty excited to read this report, because we study such matters closely. Every few weeks I get an exuberant report of a big health claim, on another alcohol beverage product — but it almost always turns out to be a false alarm.

Also, I wanted to give AJ (formerly known as The Marin Institute) a fair chance to persuade me that a lot of companies do in fact go over “the line.” Even though I freely admit that we derive most of our revenue from alcohol beverage companies, I like to think we are fair and open-minded enough to agree with a strong and well-made point.

The report tends to say a large number of alcohol beverage companies are running roughshod over consumers, with phony health claims, and with the rules either insufficient or largely ignored. AJ suggests the rules are “constantly being violated.”

These advertising practices are legally tenuous, morally unsound, and potentially dangerous. … Using health messages to sell products that can cause such widespread harm is not only unethical, it’s illegal, and yet the regulatory system has failed miserably to protect the American public. … This report examines this disturbing trend to promote alcohol as a health and fitness product…

I was eager to see the evidence at long last. I have seen many a company try and fail, to find a way to meekly suggest that their product might have some positive attributes beyond taste. I recall when a few wine labels tried but failed to suggest, after much litigation, that it might not be a bad idea to check with your doctor about the health effects of wine. Mind you, there was no reference to health benefits. I was eager to see the examples of wine labels promoting heart health; I was eager to see the various digestif labels promoting longevity and improved digestive function; I was eager to see the various anti-oxidant labels that had so stubbornly evaded my past inquisitions.

Instead, AJ trotted out Lotus “Vitamin Infused” Vodka. It sounds dramatic, with all the talk of vitamins and vodka.

[T]he first fortified – or “enhanced” – vodka was introduced in 2007. Lotus White is infused with vitamins B3, B6, B9, and B12. According to the company’s CEO, the vitamins are meant to curb or eradicate hangovers. In an interview, he said the vodka “could actually be good for you.” … Despite the dubious nature of [the] health claims, the marketing techniques seem to be working. Lotus vodka’s sales increased 50 percent in 2009…

AJ fails to note that it never mentioned vitamins on the label, and so far as I know, it hasn’t been sold in many years. It never sold more than a few thousand bottles per year, worldwide. The fading Lotus website shows a total of five web retailers; none of them carry this anymore or have it in stock.

If this is the best AJ can do, with thousands of new alcohol beverage products every year, and over 130,000 label approvals per year, it is tough to imagine a more ringing endorsement for the status quo.

AJ next rails against the pernicious use of the term “natural” on various alcohol beverages.

In 2008, three of the five top-selling vodka companies in the U.S. had ad campaigns with fruit and positioned their products as fresh or all natural:  Absolut (2nd), Skyy (4th), and Stoli (5th). At least one other spirit, Finlandia vodka, also took advantage of the all-natural designation. … Skyy’s website, however, confirms that no actual fruit is used in the process. Because [TTB] has not defined the words “infusion” or “all-natural,” the company uses them freely.

I am having trouble comprehending whether AJ would be more happy if the same products were loaded up with artificial flavors instead. As Herman Cain might say, AJ is “incorrect” in saying TTB does not define terms like natural and all-natural. TTB has rigorous standards for terms such as these. TTB tests all flavors in all alcohol beverages — whether made within or without the US — to verify that they are natural. It is far from a rubber stamp regime. TTB maintains a laboratory staffed with more than a few specialized beverage and non-beverage chemists, to verify the assertions of the many specialized and sophisticated flavor companies that seek flavor approvals. In many instances, far from being a marketing gimmick, the law requires the use of natural flavors only (prime examples would be liqueurs and the flavored vodkas mentioned by AJ). To avoid the use of natural flavors in products like the flavored vodkas above would be in direct and flagrant conflict with federal laws in place since about the 1930s. This being the case, does AJ really think it’s a good idea to suppress this information? And on what grounds? AJ also suggests that the term “organic” should not be used on products that meet the rigorous standards to qualify as organic. AJ is long on casting aspersions and short on constructive suggestions in saying “marketers should not use the term ‘organic’ to imply an alcoholic beverage is healthful. Additional oversight by federal regulators is needed here, as well.”

See Part 2 of 2 in about a week

Related Posts:

• AJ Report on Health Claims, Part 2 (0)
• Ugly American Beer (2)
• TTB Products from Majority Muslim Countries (0)

I am pretty sure Pyotr Smirnov never envisioned this. It is peanut butter flavored vodka. It is made by Terressentia Corporation of Charleston, South Carolina. Since I am in Charleston at this very moment, and getting hungry, this seemed like a fine time to feature this product.

Temperance has a similarly flavored product. It is surprising that TTB would allow it to be described as “Peanut Butter Vodka,” unlike the above, without the key term “Flavored” in the middle. TTB is usually more likely to allow terminology like Coconut Rum as compared to Coconut Vodka (partly on the theory that confusion could otherwise arise due to the fact that vodka could possibly be distilled from coconuts, but rum could not). No word yet on vodka distilled from peanuts.

Related Posts:

• Wheat Wine (0)
• Poteen: Irish Moonshine (1)
• Pernod Absinthe (4)

In the above example, it is not sufficient to have VODKA on the front label. Or, the right size. In addition, it needs to be “separate and apart” from other matter. TTB has gotten more strict about this over the years. The above rejection is from a few days ago. The vodka label is from many years ago, to show the movement in the policy, or the enforcement of the policy.

TTB is quite concerned about word placement and proximity. For example, “absinthe” must appear next to other words, as here. Vodka may not, as above. It is important to understand the various proximity rules, because they can lead to unpleasant surprises, and because they extend from spirits to beer and wine. It is probably not okay to bury the word “chardonnay” amidst a sentence singing its praises. It is probably not okay, in most instances, to affix several words before and after BEER.

The rule can be difficult because it’s not always clear how much separation is required (A few spaces? A few line breaks?). It’s not always clear why some terms get treated differently (such as “Silver Rum” or “Cream Liqueur”). It is easy enough to add an extra class/type statement to the front label, to avoid any difficulties (such as adding VODKA to the above label, on its own line) — but only if you know the rule early enough.

Related Posts:

• Remove the Word “Digestif” (5)
• Rejection: Refreshing (0)
• Over Regulated Ale, Part 1 (2)

On this label, the Nova Scotia heritage is pretty big and prominent. Even though the beer is made in downtown St. Louis.

The look is probably saved by the equally big reference to “style,” and the not so big reference to Missouri. Shock Top provides another example of the power of “style.” The label proclaims Belgian in medium-sized letters on the front label, and this is saved by the nearby reference to “style”  — also on the front label of this other beer made in the middle of the U.S.

Related Posts:

• Twistee Rules: Aggregate Packaging (0)
• Napa Vodka (0)
• How Long Until Cuban Rum? (4)

We covered several sparkling spirits products about three years ago, here, and so it may be about time for a redux. There is quite a bit of action on this front, in recent months, perhaps due to the high profile of Nuvo Sparkling Liqueur.

Here is a Sparkling Vodka under the brand name Le Grand Saint. Technically, it is a distilled spirits specialty more than a “vodka” or a specific class/type. The statement of composition (“vodka infused with carbonation”) appears in gold letters near the top of the front label.

Another good example is Prévu. It is unique in the sense that it is sparkling, and liqueur, and organic. It is made with vodka and Cognac, and imported by Simont Enterprises of Los Angeles, California. Prévu also happens to have a great looking website and bottle. If the product is even half as good as what is shown there, I should step away from the computer and go get several bottles.

Related Posts:

• Vodka Distilled 18 Times (4)
• Sparkling Spirits (0)
• Forty Proof Beer (0)

TTB has recently liberalized the treatment of personalized labels, such as a wine label with “Happy Birthday Bob.” No longer will it be necessary to burden your company, or the government, with paperwork to cover “Happy Birthday Steve” or Judy, Tom, etc.

TTB announced this change on September 21, 2011 in TTB Guidance 2011-5. The document supersedes a policy from about a year and a half earlier; the 2010 policy required a new approval for just about every variation (such as each wedding, retirement, Bar Mitzvah, graduation, anniversary, etc.). In liberalizing the policy, TTB said:

Our 2010-1 guidance did not allow certificate holders to change the artwork or graphics on personalized labels without resubmission of the labels for approval. We have reconsidered this requirement and now permit certificate holders to make changes to the graphics or artwork on a previously approved personalized label without having to apply for a new certificate of label approval.

The above label, from Llano Estacado Winery, is an early approval under the new policy. The new policy seems due at least in part to pressure from Sen. Schumer. He mounted a vigorous campaign, on this topic, over the past summer. His August 9, 2011 press release, noting the progress, said:

In the case of … personalized labels the TTB agreed with Schumer’s request to streamline the process saying, “Effective immediately, TTB will not require resubmission of labels due to changes in graphics or artwork.”  In the past, TTB permitted wineries to simply apply once for approval of a custom label template to ensure it contained the required regulatory and safety warnings, after which the winery could customize and personalize the artwork … to suit the specific event.  TTB then changed course to require individual approval of labels when changes were made to graphics and label components apart of the regulatory and safety warnings.  By working with industry stakeholders to find ways to streamline approval of these custom labels TTB could, in turn, help ease the current backlog of COLA applications.

The press release also noted:

New York wineries have recently reported that it can take at least one month to receive approval of an electronically-filed COLA application and two to three months for a paper application. Often, when wineries finally do receive feedback, it is with a rejected label and the necessary corrections, and at that point labels must be resubmitted and the COLA process must begin again. The TTB told Schumer itself that they have noticed a significant increase in the typical amount of time it takes for them to respond to requests for label approvals.

So far, it does not seem that the current personalization policy would extend all the way to other masses of labels, such as Molson and Twisted Tea (large numbers of labels with other sorts of small variations).

Related Posts:

• The Voyant Saga (4)
• Streamlining COLAs? (0)
• Sen. Schumer Says Labels Take Too Long (1)

Part of the challenge and complexity is that label rules and trends change often. As recently as a few years ago, TTB would balk about pre-eminently famous people, such as these, on alcohol beverage labels. Founding Fathers Beer is bottled by CBC Latrobe in Latrobe, Pennsylvania. I tend to doubt that TTB would allow a President Obama label, even today (except maybe as a caricature), but George Bush, Bill Clinton and the prior Presidents may well be fair game now or soon.

Related Posts:

• Ugly American Beer (2)
• TTB Products from Majority Muslim Countries (0)
• Obama: Where the Line is Drawn (2)