Posts Tagged ‘policy’

LSD Causes Unchill in DC


The Washington Times and CityPages claim that TTB recently rebuffed a Minnesota brewer, in its efforts to hint about LSD on a beer label.

In doing so, the CityPages article took a few tough shots at TTB, calling them a “bunch of unchill tightwads,” “notoriously persnickety,” and describing the anatomy of people who work there, in an even less flattering way.

But if the label at issue looks anything like the above, why should a government agency give it a thumbs up? What’s the point of a review process, if it’s so porous that an LSD label would go through? By contrast, this one looks to be the version that did go through, and I really don’t think it’s so bad, or such a gross imposition on free speech. This seems like a good balance; the approved version certainly gets the point across, in a slightly more subtle way.

Even the brewer seems to acknowledge the above name might go too far, saying “With the name, I think we were pushing the envelope, too. Unfortunately, the envelope broke.”


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flavored malt beverage

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Bourbon-Barrel-Aged Wine


At USBevX a few days ago I heard lots of questions about various wines aged in Bourbon barrels. But I did not hear lots of answers so I thought I would take a look and see what’s going on. This Fetzer example, above, seems like a good place to start.

It tends to show that it is okay to mention Bourbon on a vintage- and varietal-designated wine. I am a little surprised I don’t see any reference to a formula approval, or to the amount of aging in said barrel. This Fetzer label is also noteworthy because it quickly drew the ire of the big Buffalo, as in Buffalo Trace; Sazerac charged at Fetzer for attempting to graze on land staked out long ago by the whiskey company. This really good article discusses the trademark dispute, about 1/3 of the way down the page.

I see about 64 wine labels with reference to Bourbon as approved by TTB during the past five years. Another representative one, from another big company, is this Robert Mondavi approval. I don’t really see any comparable labels, in the prior five year period. From these two examples, and a bit of asking around, it sounds like the reference to Bourbon should not appear on the same line as the wine’s class/type statement. Also, you are more likely to need aging details (e.g., Aged 6 Months) on the label if the age reference appears on the “brand label.”



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whisky, wine

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PTO Doesn’t Buy That THC Stands for Tea Honey Care

The Trademark Trial and Appeal Board (TTAB) of the United States Patent and Trademark Office (PTO) recently affirmed the refusal to register the mark THCTEA, holding that it is “deceptively misdescriptive” when used in connection with tea-based beverages. The Applicant—Christopher Hinton—is, according to marijuanafreepress.com, the acting editor for the Marijuana Free Press.

THCTEA’s journey through the trademark system has been an uphill battle.The mark was first refused by the PTO back in September 2012, for being “merely descriptive” and for “plainly indicat[ing] that Applicant’s…goods include…THC.” One pre-requisite for trademark registration is lawful use of the mark in commerce. The problem in this case was that goods containing THC (tetrahydrocannabinol, the active ingredient in marijuana) are illegal under federal law, so it would be impossible for the Applicant to show lawful use of the mark if the product did indeed contain THC.

Here is where things become interesting. The Applicant responded by clarifying that his beverages do not actually contain THC. Accordingly, the PTO rescinded its refusal based on unlawful use, but raised a new ground for refusal, based on the Applicant’s own admission: Using THCTEA on a beverage that contains no THC is deceptively misdescriptive.

Deceptively misdescriptive marks have two key features:  they misdescribe a significant characteristic of the goods associated with the mark (the “misdescriptive” part); and they are likely to cause reasonable consumers to purchase the goods, believing that the goods contain the misdescribed trait (the “deceptive” part). For example, LOVEE LAMB was held to be deceptively misdescriptive for seat covers that were not actually made of lamb’s wool. On the other hand, WOOLRICH was held not to be deceptively misdescriptive for clothes made out of cotton. In close cases, good lawyering can make a big difference.

After the PTO issued a final refusal, the Applicant appealed to the TTAB. On appeal, the Applicant re-alleged his previous arguments: “The characteristics of Applicant’s goods are such that they are suggestive” and “the product does not contain the controlled substance THC…THC is an abbreviation for ‘The Honey Care Tea.’” The TTAB was unpersuaded, and affirmed the PTO’s refusal.

Regarding the misdescription, the TTAB held that “it is plausible that tea-based beverages could contain THC” (albeit illegally) and that “THCTEA, when used for tea-based beverages, is merely descriptive for tea containing THC as a significant ingredient.” Apparently, recipes for THC-containing tea from such websites as grasscity.com, thestonercookbook.com, and 420magazine.com are sufficient to persuade the government that THC-containing tea is plausible. We were unable to find a recipe for THC-containing tea on marijuanafreepress.com.

Regarding deception, the TTAB agreed with the PTO that consumers would be likely to buy THCTEA beverages believing that they contain THC. The TTAB reasoned that, in light of the liberalization of marijuana policy in the United States, “a reasonably prudent consumer would be likely to believe that Applicant’s…beverages contain THC.”

In what probably comes as no surprise, neither the PTO nor the TTAB bought the Applicant’s argument that “THC” stands for “Tea Honey Care,” or that “THCTEA” stands for “The Honey Care Tea.” Apparently, the Applicant’s “example advertisements” (below) were unpersuasive:


Additionally, the specimen (below) that the Applicant submitted to the PTO probably did not help his “Tea Honey Care” argument:


THCTEA illustrates an interesting Catch-22 for descriptive marks that reference controlled substances. If you do put the controlled substance in your goods, you can’t claim lawful use of your mark in commerce. If you don’t put the controlled substance in your goods, your mark may be deceptively misdescriptive.



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Beer Cops, Another Side

I normally like The Wall Street Journal but wow a recent editorial about “The Craft Beer Cops” was a letdown. I am not sure it is even worthy of a college newspaper, or one of the Journal’s interns. I don’t see any new points and I certainly don’t see any ideas for how to more properly regulate the industry. It has the feel of Trumpism; a few guys said it’s bad, and that becomes sufficient evidence that it’s a yuge disaster. I don’t want to paste the whole editorial because it’s behind a paywall, so I tried to repeat only the worst half, as below within the block quotes.

You might think of a microbrewery as a home for free spirits who grow long beards, take their dogs to work, and make their own rules. But Washington won’t let them. …

This seems a dumb place to start. Does anyone really think each brewer should do entirely as they wish? I doubt it. So it’s really a question of which rules are good, not whether. Not to mention that there is plenty of evidence that many of the brewers like the rules and helped shape them.

Mr. Bush had recently bumped into Erik Olsen of New Hampshire’s Kelsen Brewing Company, who told him that competing in this industry requires a license from the U.S. Treasury that Mr. Bush says goes back to Prohibition days. …

Fantastic. One data point, based on bumping into one person. Is the licensing scheme bad just because it goes back a few generations?

[TTB] says its application process is …” You know, in case they might be Al Capone.

This seems particularly lazy and suggests that just because the bearded gents might not tote machine guns, that they are all angels. Also, I thought Al Capone was a spirits guy (not a Chardonnay or Dunkel guy). Then again, maybe he did dabble in Dunkel.

Brewers have to go back to the feds to get approval for each new label. … He adds that the agency “has to approve our plans before we can start using the new expansion space for brewing.” This can take six months or more.

This I agree with more. If the government wants to have at least one hand on the steering wheel, they should put up the resources to do so properly.

Ohio Gov. John Kasich got an earful on the same subject when he recently visited New Hampshire’s Henniker Brewing. The [rules] even covers font sizes. [Henniker] was forced to stop calling its old-fashioned porter “soothing” because regulators claimed it suggested a medical benefit.

Are font rules really so onerous, especially in that TTB more or less made this a low priority a few years back? What’s the point of mandatory labeling if it’s smaller than readable? Even if you think “soothing” should be allowed, if you think all words should be allowed, you probably just have a bad imagination.

This kind of nonsensical regulation could drive anyone to drink, and it’s one more reason we have a 2% growth economy.

This is the dumbest point of all. Despite all the rules, the Journal may have picked the single worst industry in the land, to make its point about stunted growth. Is any industry growing faster than craft beer?


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malt beverage

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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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