With the boom of craft producers, competition is ever-increasing. If you’re thinking about going into the business or you already have, undoubtedly you have considered how you can best protect your products, recipes, methodologies, and distribution from imitation or recreation. The sale and manufacture of unique craft drinks creates a unique set of issues and considerations.
Read the full article, originally published in the Summer 2016 issue of Artisan Spirit.
Most participants in the alcohol beverage industry are very familiar with the “three tier system.” What will surprise many, however, is learning that the system did not emerge immediately after Prohibition.
Read the full article, originally published in the May/June 2016 issue of The New Brewer.
This Friday, May 27, 2016, the US Food and Drug Administration (FDA) will publish its revised Nutrition and Supplement Facts and Serving Size regulations. The Serving Size regulation in public inspection view is close to 180 pages and the Nutrition Facts regulation is close to 1,000 pages.
Significantly, for beverages:
In addition, the new rules include “added sugar” labeling requirements that will likely prove quite controversial.
Assuming no congressional intervention or court challenges delay implementation (and the requirements for declaring “added sugar” may result in some), the compliance dates for the new rules are:
On May 5, 2016, the US Food and Drug Administration (FDA) announced the availability of its final menu labeling guidance, “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods – Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11).” The guidance is designed to help businesses comply with the menu labeling final rule.
Under a law signed late last year, FDA’s enforcement of its menu labeling final rule cannot begin until one year after FDA published this notice of availability. As a result, enforcement of the final Menu Labeling regulations will start on May 5, 2017.
FDA’s guidance responds to many frequently asked questions that it has received. It differs from the draft guidance by providing additional examples and new or revised questions and answers on topics such as covered establishments (pages 6, 12–17), alcohol beverages (pages 50–55), catered events (page 14), mobile vendors (page 16), grab-and-go items (pages 40–41) and record keeping requirements (pages 42–47). (more…)
The annual Craft Brewers’ Conference will be held on May 3-6, 2016 in Philadelphia, PA. McDermott partner, Marc Sorini will give two presentations:
For more information or to register, please visit https://www.craftbrewersconference.com/.
What’s in a name? (Or a slogan, logo, symbol or other source-identifying device?) Well, turns out a lot. While the craft spirits industry is a tight knit and collegial community, businesses must strive to create a unique and distinctive place in the market that makes their products stand out from the rest. For small distillers, who may have leaner advertising budgets than the spirits giants, one effective way to plant your flat in the ground and say “This is who we are, come and join us!” is through trademarks.
A trademark is any word, name, symbol, logo and/or device the identifies the goods and services of one party, and distinguishes such offerings from those of others.
Below we provide some tips and recommendations for small distillers to consider when selecting and protecting trademarks.
Read the full article (originally published in the Spring 2016 issue of Artisan Spirit).
The latest merits decision in the ongoing false advertising/labeling class actions appears here. This case involves allegations that the labeling and marketing of Red Stripe Beer misleads consumers into thinking they are purchasing beer made in Jamaica from Jamaican ingredients. In fact, production of Red Stripe for the US market moved to the US in 2012. The Southern District of California’s Dumas v. Diageo PLC decision to dismiss the plaintiffs’ case gives hope that companies with alcohol beverage brands originating overseas can produce those brands in the US without facing significant litigation risk.
The plaintiffs brought their case under several California statues and also alleged negligent and intentional misrepresentation. Central to the plaintiffs’ allegations were statements on Red Stripe’s secondary packaging and labeling that the beer was a “Jamaican Style Lager” and contained “The Taste of Jamaica.” The plaintiffs also pointed to the labeling and packaging’s continued display of the original Jamaican brewer’s logo as evidence of deception. Finally, the plaintiffs pointed to the label’s statement that the beer “embodied the spirit, rhythm and pulse of Jamaica and its people.” Of course, the labels and secondary packaging did disclose that the US market beer was brewed and bottled in Latrobe, Pennsylvania.
Looking only at the complaint and before any discovery, the court dismissed the case, concluding that “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” More specifically:
On the basis of this reasoning, the court dismissed the plaintiffs’ complaint as a matter of law. It did, however, dismiss the case “without prejudice,” which will give the plaintiffs 15 days (until April 21, 2016) to assert new claims that might survive dismissal.
The Dumas opinion represents merely one battle won (at least temporarily) in what will no doubt [...]
Continue Reading
The U.S. Court of Appeals for the Ninth Circuit today placed on hold a consumer class action involving yogurt labels until the FDA issues final guidance on use of the terms at issue in the dispute—a decision that could ripple outward to the many other food and beverage cases alleging deceptive labeling.
The plaintiffs in Kane v. Chobani, LLC, No. 14-15670, alleged that Chobani deceptively labeled its yogurt as “natural” in violation of FDA regulations, and improperly used the term “evaporated cane juice” to describe the yogurt’s added sugar ingredient. But because the FDA is currently considering the scope and permissible usage of both terms, the court ordered a stay “until such time as the [FDA] completes its proceedings regarding the use of the terms . . . in food labeling.” The use of both terms “implicates technical and policy question that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch,” the court wrote, noting that it made no sense—and would be inefficient—to continue litigating the case while the FDA was mulling questions at the heart of the litigation.
Today’s ruling directly applies only to the Kane case, but other courts are likely to follow a similar path while awaiting guidance from regulators, rather than expending time and energy on continued litigation that could be rendered moot. The stay comes as other courts within the 9th Circuit and elsewhere are considering similar class actions involving alcoholic beverages, including from consumers claiming they were misled by labels calling popular products “handmade.” Although there are currently no pending FDA proceedings considering use of the term “handmade,” cases involving that word could also end up subject to a stay if that changes. As it is, some courts have dismissed such claims on the grounds that no reasonable consumer can believe spirits brands are “handmade” or because the use of such terms is non-actionable “puffery,” but others have been allowed to proceed.
Whether you’re an experienced brewer getting ready to enter a new state, a startup packaging brewery looking to serve your home market, or a brewpub expanding to provide products to local retailers, you need a viable distribution plan. In recent years, individual brewers have deepened their understanding of industry dynamics in the heavily regulated beer distribution system. While many are effectively advocating reforms to accommodate new brewery business models, change occurs slowly in the political process. Those in business today who want to remain in business tomorrow need to deal with the existing realities of the marketplace. The following is a primer of common questions and answers related to distribution.
Read the full article, originally published in the March/April issue of The New Brewer.
On March 16, the federal Alcohol and Tobacco Tax and Trade Bureau (TTB) published a list of frequently asked questions expanding further on a ruling issued in February on application of the federal “tied house law” to industry promotional activities, specifically category management practices employed by retailers.
TTB claims that a formal rulemaking to revise its tied house regulations is not necessary: “TTB Ruling 2016-1 merely provides guidance as to the plain meaning of the existing regulation under 27 CFR 6.99(b). It does not change TTB’s longstanding position, nor does it change the meaning of the plain language of this regulatory exception.” So let’s look at the plain language:
The act by an industry member [supplier or wholesaler] of providing a recommended shelf plan or shelf schematic for distilled spirits, wine, or malt beverages does not constitute a means to induce within the meaning of section 105(b)(3) of the [Federal Alcohol Administration (FAA)] Act.
That statement on its face is an open-ended authorization to provide shelf schematics. It says nothing about the products of other industry members or whether the plan is written on a napkin or in a sophisticated IT system that is used for inventory management at hundreds of stores. (more…)
Subscribe
