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Help TTB Break the Logjam (Free the Labels)

In this blog, every now and then, we talk about how the label and formula system at TTB can be quite slow, despite various TTB efforts to streamline things. Some top examples are here:  101 Days (to get a spirits label approved); Streamlining; Sen. Schumer Says Labels Take Too Long; more streamlining. It is not a pleasure to observe that it can take more than five months to get an ordinary French Vodka approved (30 or so days at the TTB Lab, then 60 or so days to write up the formula approval, then 60 or so days for label approval — to say nothing about potholes and glitches along the way). Add a few weeks if you’d like to add a flavor.

For a change, today let’s give TTB a break and talk about what the submitters can do, to help speed things up. We will also cover what applicants should not do. Many of the same principles apply to both labels and formulas.

Applicants should:

  1. Start early. TTB and others do a pretty good job of showing the updated average processing times (APTs), for labels and formulas, so it should come as a surprise to nobody that both processes can take a very long time. Why not start early? This can help the system because it leads to fewer panicked status checks. It also should mean fewer expedite requests. Such requests can put a lot of stress on the system, tie up a lot of resources, and they can also mean other applications are jumping in front of and slowing down yours.
  2. Put in solid applications. It’s not so hard to put in a good application, especially if you are only handling one commodity (such as only domestic wine or only imported beer). An example would be knowing what kinds of products need formula approval prior to label approval, then attaching the formula approval to the label. TTB calls such applications, without errors or omissions, “perfected applications.” More than 43% of all label applications go back to the applicant as “needs correction” (see page 3 of the PowerPoint here). When all such labels are counted — submissions and resubmissions — TTB gets about 250,000 label submissions per year. TTB only has about one beer reviewer and 1-2 spirits reviewers — so this can sometimes be a very heavy load. If you think it’s easy, you are not paying attention; you can submit any old thing but the government has the burden to give a thumbs up or a thumbs down (and not just a maybe) to every one, under hundreds of pages of rules.
  3. Read the rules. In the days before the internet maybe you had a good excuse not to skim the rules. But with the rules essentially at your fingertips, free, you should probably do your part to peruse the rules before complaining that TTB is too slow. If you don’t want to read the rules you should probably hire a lawyer or consultant.
  4. Get familiar with ARTAL. This is the Allowable Revisions to Approved Labels. It can save you and TTB a lot of time. There is no reason to wait 6 weeks for a label approval, and inflict the extra work on TTB, when all you are doing is changing the alcohol content. On the formula side, when you have small changes that don’t impact labeling, you can save yourself and TTB a lot of time if you supersede rather than start anew. Otherwise, submitting a new formula usually, in turn, would trigger a new label approval.

Applicants should not:

  1. Submit for products they have no real intention of selling. Only a small percentage of all the products that go through TTB ever end up on store shelves. TTB has said it’s research tends to show that the number is as low as 10%, which would mean that the label and formula division is using more than 80% of its bandwidth on things that never go to market. In many ways the online systems have made it too easy and too inexpensive for applicants to dump work on TTB. In the olden days, the applicant at least had to pay for a stamp or FedEx, and now the system is free (if you ignore the time it takes to load the data and wait).
  2. Cry wolf. If you want to use up TTB’s time telling them it’s urgent, you should have a very good reason, and it should be a whole lot better than:
    1. we can’t sell without the approvals (too obvious, and applies to everyone in front of you in line as well)
    2. we can’t pay tax until we get the approvals (I am pretty sure TTB is not excited about the prospect of collecting a few hundred dollars in tax from you, especially when the same tax dollars are otherwise likely to get put in the till by another guy who planned ahead a bit more)
    3. an exaggeration
  3. Jam up the system with status checks or vague inquiries. There is rarely any advantage in contacting TTB about the status of a pending item, unless it’s well past the published norms. To the contrary, such requests (even when clear, polite, and when they include the ID numbers) mostly tie up the phone lines and scarce TTB resources. An especially detrimental variation is the vague status request. A good status request would be a few days after the APT, with the ID number, such as “Why is label ID 14018001000065 taking so long?” A bad status request would be, “We put in a chardonnay label a few days ago, can you check on it, it should be easy because only a few words changed, and you can find it under Jones Winery, in Napa. No I don’t have the ID number or permit number handy.” With the old, paper-based system there was at least a small chance your paperwork was stuck at the bottom of a forlorn tower of paper; in the current age there is almost no chance that the computer lost track of your application.

With this as a starting point I hope others (Ann, Deb, Marc, Teresa, Fred?) will jump in with ideas about what the industry can do to help push the wait times lower, for the benefit of all.

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TTB Eases Way Up on Formulas for Many Beers

There is some big news from TTB, via dcbrewlaw. TTB has recently decided to ease up on the formula requirements for malt beverages made with common ingredients and processes such as some barrel aging, as well as various fruits and spices. This should help considerably with TTB’s overwhelming workload, and the related delays.

At dcbrewlaw, Dan reports:

There is good news for brewers who are tired of waiting for formula approvals from TTB (currently 74 days):  you may not need it. On June 5, 2014, TTB issued a fairly significant ruling, Ingredients and Processes Used in the Production of Beer Not Subject to Formula Requirements. The ruling clearly spells out which Exempt Ingredients and Processes are now deemed “traditional” and, therefore, do not require a TTB formula approval.

The new ruling expands upon the rules as of 2013. Here are two good examples of products that needed formula approval under the old rules, before this week, and will continue to need a formula approval prior to label approval:  Bud Light Lime; Joose. By contrast, here are two products that would no longer need formula approval:  Bourbon County, Harlem. On each, the formula is highlighted in yellow. Read more about TTB Ruling 2014-4 at dcbrewlaw and TTB’s site.

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101 Days

101

A short while ago I went to see why “that easy label” is still pending, after filing it while snow was still on the ground and waiting well past spring, into summer. I was shocked* and horrified to see the above. The average processing time for spirits labels is now, as of today, way past a month or two. I am startled to see it’s past 100 days. I don’t recall it ever getting past 45 days or so, back in the days of shutdowns, Rep. Gingrich fighting with President Clinton, Tea Partiers fighting President Obama, and so forth. I find myself talking about the same pending labels, over and over again, week after week and month after month.

It is starting to feel like a crisis for many spirits companies, so far as I can tell. Maybe the big ones can plan around this and tolerate this, but waits of this magnitude are devastating for most companies, from what I can see. Why all of a sudden? Wasn’t the power of the internet and computers, and streamlining, supposed to do approximately the opposite? For those highly interested, we have an internally prepared chart showing how this has gradually or not so gradually gotten worse over the past 7 years. It is available upon request.

May 30, 2014 Updatethis now says 69 days, rather than 101, and though painful, that makes a lot more sense.
June 1, 2014 Updateonly 62 days!

My main purpose in grabbing the above screenshot is to hold out the vague, possibly naive, hope that this will mark the low point, and things somehow will get better from here. I look forward to the day when it will be hard to believe it ever took more than three months to get an “easy” whiskey label approved. Just like it is now hard to believe it ever took less than a few days (way back, decades ago). On a brighter note, it is currently taking less than a month to get a wine label approved.

* Even though the number above clearly says 101 days, and the labeling division’s phone message says the same as of today, it seems this can not possibly be correct based on the date to the right of the total. In any event, something is clearly wrong, in a protracted way. Though all this is fairly hard to believe, it is clearly true that TTB approved 667 DSP labels in the 4/26 to 5/26 period of 2013 — and only 41% as many in the same time period of 2014 (272 labels). In the same month of 2012, TTB approved 731 spirits labels. This spirits label, by way of example, took nearly six months.

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Your New Friend, ARTAL

In early July TTB announced a massive and important change to the COLA system. TTB greatly expanded the “Allowable Revisions to Approved Labels” (hereinafter “ARTAL,” as on page 3 of the new 4-page COLA form).

TTB began laying the groundwork for big “streamlining” changes in early 2012, as summarized here. Although some of the ideas seemed very modest as of then, the streamlining train clearly picked up momentum in the next few months. It seems entirely possible that some of the new changes could or should cut a very large percentage of the more than 10,000 labels submitted to TTB every month. Compared to a few years ago, it is quite amazing that the lighthouse label on the left (above) could change to something as different-looking as the striped label on the right — without any need for a new COLA.

The TTB ID number on this label, for example, shows that TTB received at least 671 label applications on just one day in April 2012 — to say nothing about the labels submitted via paper. That should not happen anymore. Instead, applicants should get familiar with ARTAL. It can eliminate lots of waiting, expense, frustration, inconsistent determinations, TTB work and applicant work.

In my view, the biggest changes to ARTAL are these. Now, it’s ok to:

  1. move things, as at 2.
  2. change typesizes and fonts, as at 3.
  3. change colors and spelling, as at 3.
  4. shift amongst paper v. painted v. etched, as at 3.
  5. make one COLA cover all sizes, as at 10. (Previously, the table said “separate applications must be submitted for containers of 237 ml or less, containers over 237 ml to 3 liters, and containers over 3 liters.”)
  6. add/delete/change awards and medals, as at 27.

ARTAL is much more powerful now. Like other powerful things, such as a chainsaw, it can do great things when used carefully — and make big problems when used improperly.

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Label Flexibility

TTB has been working on a new COLA form, with new and more flexible rules about what may change without seeking a new label approval. TTB announced this in the January 13, 2012 Newsletter and the Federal Register two weeks prior.

The new rules, if/when implemented, could allow a huge variety of big and small changes — without the need to submit, wait, haggle.

Here is the draft form. For example, the new rules (at page 3) would allow you to:

  1. Move mandatory around. This is at category 2. This would allow you to move VODKA from the bottom of the front label to the top of the front label, for example. It would not allow you to move VODKA from the front to the back. (The draft form does not seem to make it clear, about whether it’s also okay to reposition non-mandatory. It would be very strange if okay to move the important stuff but not the less important stuff.)
  2. Change colors. This is at category 3.
  3. Add/delete/change a QR code. This is at category 22.
  4. Add/delete/change social media icons. This is at category 25.
  5. Add/delete/change information about awards. This is at category 26. It remains a bad idea to announce  “Award for most antioxidants in a Cabernet.”
  6. Add/delete/change holiday/seasonal graphics/salutations. This is at category 27.
  7. Cover all sizes with one approval. This is at category 9. This could avoid the need for three separate COLAs — above 3 liters, below 237 ml., and in the middle (as on the current form at category 4).

All of this is in addition to the many other changes that have been allowed for years. For the sake of comparison, the 2011 form is here. Some of these are big changes and should help a lot. TTB’s comment period ended on February 27, 2012, but if you missed the boat or have an opinion, please set it forth below.

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