Earlier this week Robert had the pleasure of presenting a speech at the American Distilling Institute conference in Seattle. The speech was entitled “Needs Correction: 9 Common Label & Formula Controversies for Spirits at TTB.” A copy of the PowerPoint is here. The speech covered common Needs Correction issues such as proper class/type statements for moonshine labels, when age statements are required and prohibited, and the term “craft.” On the formula side, the speech covered when a formula approval is and is not required, and common issues that can make a fairly slow system even slower.
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Wine Growlers
Environmentally-conscious and corkscrew-phobic wine lovers alike will be thrilled to hear that TTB issued a ruling on March 11, 2014, allowing the filling of wine growlers by TTB-licensed tax-paid wine bottling houses (“TPWBH”). The ruling is in response to a new Washington state law allowing state-licensed wineries to sell wine off-site in kegs or “sanitary containers” (i.e., growlers) for off-premise consumption. Oregon passed a similar law in April 2013.
These laws are particularly helpful to wineries that operate both a production facility and a separate tasting room, allowing them to fill growlers for off-premise consumption at either location. The TTB ruling is somewhat less helpful to wine retailers, requiring that they go to the extra trouble of becoming TPWBH-licensed and comply with label and recordkeeping requirements.
Some wine retailers complain that it is unfair to not allow non-TPBH wine shops to sell growler fills to-go, since beer shops currently enjoy that privilege. TTB explains, the Internal Revenue Code (“IRC”) “has very specific requirements regarding the bottling of taxpaid wine. Section 5352 of the IRC requires any person who bottles, packages, or repackages taxpaid wine to first apply for and receive permission to operate as a taxpaid wine bottling house. There is no analogous provision with respect to beer.” The current TTB ruling interprets growler filling as...
Continue Reading Leave a CommentPom v. Coke, Battle of the Misleading Fruits
The U.S. Supreme Court, on January 10, 2014, agreed to hear Pom’s argument that Coke’s fruit beverage labels (such as the one at right) are misleading. The excellent FDA Law Blog has good coverage of the controversy here. Coke’s Minute Maid product only has a tiny amount of pomegranate juice — less than 0.5% — and so Pom (rather than the government) argues that this is misleading especially inasmuch as the labels show pictures of pomegranates. Pom’s superfamous lawyer argued:
This is a classic false advertising case. Pom and Coca-Cola compete directly in the market for pomegranate juices. Pom sells juices that—as purchasers would naturally expect—overwhelmingly contain actual pomegranate juice, which is sought by healthconscious consumers. Pom’s products include a pomegranate-blueberry juice. Coca-Cola sells and aggressively markets its competing “POMEGRANATE BLUEBERRY” juice, which it colors a deep purple and sells with a label containing a large image of each fruit. … Coca-Cola’s misleading label causes consumers to believe that the juice actually contains significant amounts of those fruits when in fact it contains only trivial amounts: 0.3% pomegranate juice and 0.2% blueberry juice. … Pom introduced survey evidence showing that consumers are in fact seriously misled.
Pom also quotes a key part of the government’s brief: “Further, the ‘FDA does not approve...
Continue Reading Leave a CommentBeer, Pot and the Government
Joe Sixpack this week has a good and thorough look at the many beer labels that talk about and tip a hat to their colleague, marijuana. The numbers and audacity are surely growing, as the old and antiquated laws fall by the wayside a bit. I like the quaint and funny reference to coats of arms:
With this month’s ballyhooed legalization of marijuana in Colorado, some beer makers are adding playful drug references to their brand names and labels, and regulators can do little to censor them. Label oversight, a quirky if contentious area of federal alcohol law, has confounded breweries for years with often capricious standards that bear little on consumer protection. Federal law, for example, oddly prohibits the use of coats of arms or wording that promises ‘pre-war strength,’ whatever that means.
Mr. Russell (aka Joe) also helped educate me that a safety meeting is not necessarily boring and dire:
Continue Reading Leave a CommentYes, there are limits. Dark Horse Brewing, in Michigan, lost its bid for Smells Like Weed IPA, though its hops, in fact, smell like pot. The name was later changed to Smells Like A Safety Meeting IPA. (A ‘safety meeting’ is slang for taking a break on the job to light up a doober.) But expect to see fewer of those objections as...
Tags: caffeine/secondary effects, cannabis, legally interesting/controversial, media buzz, policy, speech
Of DSS, SOC and LabelVision
Well here I sit, writing on day 15 of the shutdown. All the government stuff I need (such as COLAs Online) is unavailable. Thank goodness that all the private stuff is available. It takes a lot of public and private resources to make this blog go. That is, on the private side, I need my web server, my ISP, my WordPress, Google, a bit of AC power, etc.
Increasingly, I also need my LabelVision. LabelVision is a tremendous resource, provided by the people at ShipCompliant. It provides various ways to scour TTB’s label database, even when TTB’s systems are down. LabelVision enabled me to quickly find the WinterJack COLA as above. To find this label, my other and much less appealing options would have been to wait until TTB re-opens someday, or jump in the car and drive around until I find this new product.
I had a sudden need to look at this Tennessee Cider label in order to explore what is new and current in distilled spirits specialty (“DSS”) labeling, and the statements of composition (“SOC”) that go along with this category of spirits. To recap, where you have a common type, set out in the regulations, it is sufficient to mention...
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Distinctive Containers
Most people call them COLAs or FLAs (federal label approvals) or “label approvals.” But those terms leave out the not so minor B — as it appears in the word “bottle,” highlighted above. TTB’s pre-market approval system extends to bottles, and it is starting to seem like many people forgot about this or never knew. TTB’s bottle review probably does not cover run of the mill bottles. It is meant to cover “distinctive bottles.” The COLA form mentions that you must complete item 18.c. “if you intend to bottle distilled spirits in a distinctive container.” It’s not so easy to know what is and isn’t distinctive. The regulations use the term “distinctive” many times, and even explain the requirements for distinctive bottles, but they don’t explain when bottles are and aren’t. It is good to know that Jim Beam Brands, at least, still knows how to do this right, and can serve as a good reminder to others. The above Stillhouse Decanter certainly appears to be — on the distinctive side — for a bottle. And alas, the corresponding approval is here; item 18.c. seems to be duly completed to verify that the bottle is both distinctive and approved. Beam’s press release puts things in perspective and explains that even Jim Beam does not...
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