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Kombucha Law Webinar

Last week I had the honor of participating in AHPA‘s webinar on kombucha law. Part of the recording is above and here. The American Herbal Products Association has been active since 1982, and now has more than 300 food, beverage and supplement members. It was an honor because of the eminence of my co-presenters:

  1. Justin Prochnow, FDA lawyer at Greenberg Traurig, Denver
  2. Will Garvin, FDA lawyer at Buchanan Ingersoll, Washington
  3. Peter Evich, Lobbyist, Van Scoyoc Associates, Washington
  4. Art Libertucci, Consultant, The Buckles Group, Washington

Justin spoke on bottle bills issues. Will covered FDA labeling. Peter covered pending legislative issues. Art helped organize the webinar. I spoke on the various TTB issues raised by kombucha.

It was also an honor because the issues are so timely and challenging. Kombucha is surging in popularity. It raises difficult issues such as:

  1. is it beer, wine, cereal beverage, malt beverage, food, supplement, or some combination
  2. what TTB permits may be needed
  3. does it need FDA or TTB labeling, or both
  4. what taxes apply
  5. what penalties may apply, if you blow it

The entire video is about 2 hours, but I have chopped it down to the 30 minutes or so that covers the TTB issues (1-5 as listed above). The entirety, with about 20 minutes of questions and answers, is available from AHPA as here.

 

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Cannabis Labeling

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Is it just a matter of time before TTB is scutinizing cannabis labels — for sneaky references to — wine?

I hope so. That would be great.

This article about cannabis beer got me to thinking about all manner of cannabinoid-related issues.

Did TTB approve the label yet? Not that I can see. I don’t find any Indica label approved for this Colorado brewery so far. But I do find this Dank label, which is pretty close. The label mentions a run-in with “the man” and pounds of resinous west coast Cannabacae. Dad and Dudes (the brewer) did a wonderful job of securing some trademark rights in this important term (DANK) sure to be much and more in demand in the future. But the label oddly implies that the company has a trademark registration on the term DANK in and of itself, when it does not appear that anyone does. I wonder if D&D’s registration will be sufficient, someday, to block pot purveyors from using the term DANK as part of their branding, and if pot will be considered highly-related to beer/wine/spirits.

Thanks to LabelVision, it’s quite easy to see that TTB has allowed only two “cannabis” labels so far:  vodka with cannabis sativa, and Cabernet Franc with notes of cannabis (“pairs well with baked food or an after dinner smoke”).

There are quite a few Indica labels (not including the one in the drinks business article). There are plenty of pot labels wafting around already, and it seems clear there are many more on the way, in one form or another.

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alcohol beverages generally, marijuana


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No GMO at TTB

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Here we are, checking in a year later, after this post on GMO labeling. TTB still does not allow GMO labeling of the sort depicted above. This sort of labeling seems to be sweeping across the grocery store, but not in the alcohol beverage aisle. We have at least two bases for saying this. First of all, there is this recent Needs Correction (NC) notice. It says the GMO talk is misleading, therapeutic and not acceptable.

Second, we checked through LabelVision and see essentially no GMO-related labels. It is pretty amazing that few if any seem to have slipped through, even though this list tends to say quite a few alcohol beverage products meet the Non-GMO Profect standards.

This NC notice is good because it also happens to cover a few other issues. It reminds us that grape varietal terms should not be used on flavored wine products. It also reminds us that if you have something like a margarita-flavored wine product, it may be necessary to clearly mention that it’s a “wine cocktail.”

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alcohol beverages generally


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Gluten-Free Labeling

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Sorry to disappoint anyone, but that’s not Attorney John Messinger over to the left. But it is John, over to the right, covering Gluten-Free Labeling for Beer, Wine and Spirits, in a recent issue of Beverage Master Magazine.

The full article is here. The first few paragraphs are here:

Gluten-free foods and beverages were one of the popular trends of 2014. In the past year, over 70 new alcohol beverage label approvals mentioned “gluten-free,” which is more than the combined total of gluten-free labels in 2012 and 2013. Breweries, wineries and distilleries who wish to cater to the gluten-free diet market and provide those with celiac disease additional choices can do so, but there are a fair amount of rules and red tape to wade through. This article breaks down the federal requirements for gluten-free labeling.

Background

The Alcohol and Tobacco Tax and Trade Bureau (“TTB”) regulates the labeling and advertising for the majority alcohol beverages. In May 2012, TTB issued an interim policy on gluten content statements in the labeling and advertising of beer, wine and distilled spirits, which allowed some products to make gluten-free claims (TTB Ruling 2012-2). This policy was issued pending guidance or rulemaking by the Food and Drug Administration (“FDA”) on the subject of gluten-free claims. In August 2013, FDA issued a final rule to establish a regulatory definition of gluten-free (21 CFR 101.91). TTB revised their policy on gluten-free labeling and advertising in February 2014 to be consistent with (but not identical to) FDA’s final rule (TTB Ruling 2014-2).

What Qualifies as Gluten-Free?

TTB’s current policy does not allow alcohol beverage products to be labeled and advertised as gluten-free if they are made from or contain:

  1. “Gluten-containing grains,” meaning wheat, rye, barley or crossbred hybrids (e.g. triticale);
  2. Ingredients made from gluten-containing grains, if those ingredients have not been processed to reduce the gluten content of the ingredient to a level below 20 parts per million (ppm).

In general, wines fermented from fruit and certain distilled spirits that are produced from specific non-grain commodities (e.g. rum, tequila, vodka distilled from cherries) can be labeled or advertised as gluten-free without substantial difficulty.

John is a beer and beverage lawyer in the Washington, DC area. Read on, here.

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A Great Day for Maker’s Mark. A Good Day for Tito(?)

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Whoa! The first of the “handmade” cases wrapped up within the past week. On May 1, 2015 the U.S. District Court in Tallahassee dismissed the class action lawsuit against Maker’s Mark “with prejudice.” The now-defunct case alleged that Beam Suntory was bs’ing about whether the bourbon was “handmade.” The court seems to be saying “handmade” is a puff term, like “delicious.”

The term at issue has been amorphous, over the centuries, and Judge Hinkle seems to have dumped that burden on the plaintiffs:

the plaintiffs have been unable to articulate a consistent, plausible explanation of what they understood ‘handmade’ to mean in this context. This is understandable; nobody could believe a bourbon marketed this widely at this volume is made entirely or predominantly by hand. This order grants the defendant’s motion to dismiss for failure to state a claim on which relief can be granted.

The Judge makes a good point, saying:

But the term ‘handmade’ is no longer used in that sense. The same dictionary now gives a circular definition:  ‘handmade’ means ‘[m]ade by hand.’ Id. But the term obviously cannot be used literally to describe bourbon. One can knit a sweater by hand, but one cannot make bourbon by hand. Or at least, one cannot make bourbon by hand at the volume required for a nationally marketed brand like Maker’s Mark. No reasonable consumer could believe otherwise.

In sum, no reasonable person would understand “handmade” in this context to mean literally made by hand. No reasonable person would understand “handmade” in this context to mean substantial equipment was not used. If “handmade” means only made from scratch, or in small units, or in a carefully monitored process, then the plaintiffs have alleged no facts plausibly suggesting the statement is untrue. If “handmade” is understood to mean something else—some ill-defined effort to glom onto a trend toward products like craft beer—the statement is the kind of puffery that cannot support claims of this kind.

Another Maker’s Mark case is still pending, but darned if Judge Hinkle does not shoot a hole through its heart. The result here is refreshing in that I have rarely seen an important court case move so quickly. I suspect most observers expected this to grind on longer than it takes to make the very best Bourbon.

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