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Seasonal Considerations for Packaging and Selling Alcoholic Beverages

by Alva C. Mather and Andrea Nappi Conforme | Sep 6, 2024 | Beer, Malt Beverages and Cereal Beverages, Distilled Spirits, TTB COLAs and Formulas, Wine and Cider

The final quarter of the year is the alcohol industry’s busiest period, accounting for approximately 70% of annual business. Many holiday-themed seasonal products are beginning to make their way to market, and it is important to remember that these products may have additional regulatory considerations and hurdles.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) publishes a list of allowable revisions to approved labels – that is, the changes that can be made to a product with an existing certificate of label approval (COLA) without necessitating a new label approval. Notably, however, seasonal products have special allowances. Generally, any nonmandatory label information, such as a graphic, would require a new COLA to be added to a label. Yet, in accordance with Allowable Revision #28, so long as that graphic is holiday and/or seasonally themed, it can be added, deleted, or changed without a new COLA. For example, adding a smiley face to a label would require a new COLA, but adding a candy cane would not.

Even though the candy cane would not require a new COLA, it is important to remember that any additions must not conflict with or qualify the mandatory information, and they must comply with all existing regulations and avoid all prohibited practices. For example, “Happy Valentine’s Day!” can be added to a label, but “Dizzy with love on Valentine’s Day” could not be added – with the acquisition of a COLA or without. “Dizzy” or other statements that describe how the contents of the bottle may affect someone would, if added to a distilled spirits label, run afoul of 27 CFR § 5.129 (a)(1), as the term implies a physical or psychological sensation resulting from consuming the distilled spirits. For wines, a similar qualification can be found in 27 CFR § 4.39(h), and for beers, it can be found in 27 CFR § 7.129(a)(1).

After the new seasonal labels have been printed, there are several additional considerations. These include:

Packaging: There are limitations on whether the alcoholic beverage can be packaged together with a food or point of sale (POS) item.
Pricing: It is important to consider the price and whether the market will allow a pricing variance from the same alcoholic beverage when not accompanied by POS.
Separate brand registrations and price postings where required.
Special price posting designations, such as a limited availability designation for New York.

Label and packaging compliance is an area that is routinely investigated by the TTB and state regulators. Regulators conduct these compliance checks by visiting retail locations and verifying that the labels on the products conform to state and federal labeling requirements. When a label is not in compliance, the industry member may face penalties and will need to address the regulators’ concerns and correct the label(s). Maintaining compliance with TTB and state regulations helps safeguard existing licenses and helps avoid disruptions within supply chains.

For questions or assistance with seasonal items or their packaging, please contact Alva Mather [...]

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How Alcohol Industry Members Can Prepare for a Government Shutdown

by Alva C. Mather | Sep 21, 2023 | TTB COLAs and Formulas

With less than a week and a half remaining to avert a government shutdown, Congress appears no closer to finding a solution. This means that a shutdown could occur as early as October 1, 2023. Alcohol industry members should understand what this means for the Alcohol and Tobacco Tax and Trade Bureau (TTB).

While TTB would continue to provide essential services during a shutdown, the agency would not process formula approvals, permit applications or Certificate of Label Approval (COLA) applications. If a shutdown materializes, the length of the shutdown may determine the downstream impacts on the industry, but significant delays and backlogs within TTB are possible (and have occurred with previous government shutdowns).

Industry members should begin to plan for these shutdowns and/or delays as much as possible. For example, we recommend expediting the submission of seasonal labels traditionally submitted later in the fall in order to secure a COLA prior to a shutdown (TTB’s current label processing time is between 3 and 8 days, depending on the commodity).

We also recommend industry members communicate with their trade organizations about the business impacts of a shutdown and urge Congress to fund the government to avoid a shutdown altogether.

TTB in a Deregulatory Mood

by McDermott Will & Emery | Apr 18, 2018 | Advertising and Marketing, Alcohol Excise Taxes, Trade Practices, TTB COLAs and Formulas

Changes in Administration and other political shifts can have subtle and, occasionally, not-so-subtle influences in the Alcohol and Tobacco Tax and Trade Bureau (TTB) policies and priorities. In the article, “TTB in a Deregulatory Mood” published by Artisan Spirit, Marc Sorini explores how the Trump Administration’s desire to reduce regulatory burdens on business has already influenced TTB’s regulatory priorities. Particularly, in the most recent “Unified Agenda,” a bi-annual compilation of federal regulatory initiatives, TTB placed a priority on deregulatory projects, several of which would alter the regulatory environment for the industry. Marc discusses how the change in administration appears to have an effect on TTB’s rulemaking efforts.

Access the full article.

Originally published in Artisan Spirit, Spring 2018.

TTB Expands COLA Allowable Revisions

by T. Marshall Fawley III | Apr 3, 2018 | TTB COLAs and Formulas

TTB Industry Circular 2018-2, dated March 26, 2018, expanded the list of allowable revisions for approved Certificate of Label Approval (COLA) applications. The three new allowable revisions are to:

Add, delete, or change between TTB approved responsibility statements;
Add, delete, or change between TTB approved sustainable farming/environmental/eco-friendly claims; and
Add, delete, or change between TTB approved food pairing recommendations.

The Industry Circular also expanded the TTB approved statements under the allowable revision regarding how to best consume or serve the product. For a complete list of approved statements for these new and expanded allowable revisions, please see the full Industry Circular located here.

The Intersection of Spirits and Marijuana

by McDermott Will & Emery and McDermott Will & Emery | Dec 15, 2017 | Advertising and Marketing, Cannabis, Food Safety and FDA, Legislation, TTB COLAs and Formulas

In the past three years, TTB has approved an increasing number of certificate of label approvals (“COLA”) for hemp-flavored vodka, from Mill Six’s hemp, white tea and ginger flavored vodka to Olde Imperial Mystic’s hemp infused vodka. Distillers have designed labels with green smoke-like images and psychedelic sixties-style lettering to hint at their cultural connection to marijuana. As more states have legalized recreational cannabis, distillers have been thinking more ambitiously about combining their distilling business with one or more aspects of the emerging marijuana business.

Read the full article.

Originally published in Artisan Spirit: Winter 2017.

Ruling in the Asahi Beer Class Action

by McDermott Will & Emery | Nov 13, 2017 | Advertising and Marketing, TTB COLAs and Formulas

Last month the US District Court for the Central District of California issued an order in the Shalikar v. Asahi Beer U.S.A., Inc. false advertising class action case. Like many similar cases, Shalikar alleges that the plaintiffs, as representatives of a purported class of consumers, were deceived into paying more for Asahi beer because they believed the beer was made in Japan when, in fact, the beer sold in the United States was produced in Canada. In the recent order, the court denied Asahi’s motion to dismiss for failure to state a claim (a 12(b)(6) motion).

The Shalikar plaintiffs brought their case under California’s Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law, and also pled common-law claims for breach of implied warranty, fraud, intentional misrepresentation and unjust enrichment. Asahi beer that is sold in the United States is brewed in Canada, and each label states “Brewed and Bottled under Asahi’s Supervision by Molson Canada, Toronto, Canada.” Each label also states “Product of Canada” as required by US customs regulations. Plaintiffs alleged, however, they were deceived into paying more for the product because the labels and packaging use the word “Asahi,” which means “morning sun” in Japanese, and the label and packaging employs Japanese characters in several places. Plaintiffs also produced a survey purporting to show that the beer’s packaging led 86 percent of the respondents to believe that the product was brewed in Japan. (more…)

TTB Issues Updated Guidance on Personalized Labels

by T. Marshall Fawley III | Oct 25, 2017 | Advertising and Marketing, TTB COLAs and Formulas

Recently, the Alcohol and Tobacco Tax and Trade Bureau (TTB) issued an update to its existing public guidance on personalized labels. The current update clarifies the process for obtaining an approved COLA for personalized labels without requiring the applicant to resubmit the COLA application for certain changes made to the labels.

Environmental Claims in Advertising

by Arthur J. DeCelle | Mar 27, 2017 | Advertising and Marketing, TTB COLAs and Formulas

Arthur DeCelle wrote this bylined article describing how brewers can use product labels, point of sale (POS) advertising, social networks, and other media to tell customers about their environmental responsibility efforts. Such information “must be truthful and substantiated by evidence [and] must not be deceptive to reasonable consumers,” Mr. DeCelle wrote, urging brewers to “carefully consider the language you use and any potential for consumer deception [regarding] false or deceptive environmental claims.”

Read the full article.

Originally published in New Brewer, March/April 2017.

Avoiding Misleading Labeling

by Eleanor B. Atkins and McDermott Will & Emery | Feb 8, 2017 | Advertising and Marketing, TTB COLAs and Formulas

Current conventional wisdom in the craft beer business holds that being local helps sell more beer. This has led many brewers to emphasize their local roots on their labels and in their marketing efforts. In some ways, the trend has a “back to the future” feel, as labels and marketing materials once again feature place names that often became the brand names for many of the first generation of craft brewers in the 1980s.

But the emphasis on place can come with a price: the prospect of legal hurdles, including lawsuits, over allegations that a brand name, label, or advertisement misrepresents the beer’s place of production. Legally this subject usually goes by the name “geographic misdescription,” itself a subset of false advertising law. How can brewers minimize their chances of becoming the target of a lawsuit or government investigation alleging that a beer’s labeling or marketing deceived consumers?

Read the full article, originally published in the January/February 2017 issue of The New Brewer.

Trademark Tips for Small Distillers

by McDermott Will & Emery | Apr 20, 2016 | Advertising and Marketing, TTB COLAs and Formulas

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).

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