Robert C. Lehrman

LSD Causes Unchill in DC

April 12, 2016 by Robert C. Lehrman Leave a Comment

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.”

Beer with a little bit of Clover and FDA

March 23, 2016 by Robert C. Lehrman Leave a Comment

Here is a fun little article that combines a few of my favorite things: beer, law, The Washington Post and four-leaf clovers.

The article tends to say that Flying Dog had to skirmish with FDA a wee bit, before getting the go ahead to put the clovers in the beer. From the article, I can’t tell if the issue was clovers in general, or only the lucky ones.

The article also hints at other quirks in the law. It says Flying Dog submitted the beer to FDA for approval, but this seems unlikely. I can see this Maryland brewer submitting a formula to TTB for approval, but not to FDA. Also, I would have expected to see a TTB approval for the label, but I can’t find one, and this must signal that Flying Dog only plans to sell this beer intrastate, in the near term. Mostly, this beer probably signals a good excuse for a St. Patrick’s Day-timed press release.

Even though clover seems pretty common, not so new, and generally recognized as safe (whether in 21 CFR 182.10 or via common sense), this article does serve as a good reminder that brewers can’t just use any article that is lying around the field or the grocery store. Some things need a TTB and an FDA ok first.

Update. Hark. I got lucky. A nice person alerted me that the COLA is here.

Trump Vodka

March 3, 2016 by Robert C. Lehrman 3 Comments

Trump is riding high in the polls at this very moment. So high that Mitt Romney just attempted to slow Donald’s roll, by saying “what ever happened to Trump Vodka?” Indeed. All faithful readers of this blog had to know that the 2016 contest would eventually come down to matters of spirituous liquors. Mitt said:

But wait, you say, isn’t he a huge business success that knows what he’s talking about? No he isn’t. His bankruptcies have crushed small businesses and the men and women who worked for them. He inherited his business, he didn’t create it. And what ever happened to Trump Airlines? How about Trump University? And then there’s Trump Magazine and Trump Vodka and Trump Steaks, and Trump Mortgage? A business genius he is not.

Mitt has a point. I have rarely seen a less thoughtful label concept. The label makes a hollow claim that it’s “Super Premium” and “The World’s Finest” — with — wait for it — nothing to back it up. There is almost nothing of note on the label or the application. I see about seven approvals, between May of 2006 and September of 2007, before the brand was put out of its misery.

This article reports that the bottles were emblazoned with the slogan “Success Distilled,” but I don’t see it on the approvals, as would surely be required (to comply with things like laws). It continues:

As for the vodka itself, it was created by Wanders Distillery in Holland, distilled five times from “select European wheat,” and then rested for six months in stainless steel vats before bottling at 80 proof. … The only trouble was, nobody bought it. By the end of 2007 it barely registered among the top-selling vodkas, badly trailing the likes of Smirnoff and no threat whatsoever to Grey Goose. Go figure that customers wouldn’t line up for a product that existed for the sole purpose of one-upping Trump’s friend. Who would have guessed that drinkers wouldn’t hand their money to a teetotaler who had no idea what his own product tasted like. In 2008, less than two years after launch, the Trump Vodka trademark was abandoned.

Among the other bad ideas, is there any point to resting the stuff in stainless steel?

Trademarks All Over the Atlas

February 20, 2016 by Robert C. Lehrman 1 Comment

A few months ago, big law firm Foley Hoag compiled a marvelous list of trademark scuffles, within the alcohol beverage category, during the past year. We already knew there were scores of tussles, and the list was growing ever longer, but we never quite realized how fast the casualties are stacking up. The article shows at least 50 such disputes.

Of all those, the Atlas dispute is the one that caught my eye. Because it’s local, must be crushing news for whoever lost, recent, and I had not heard about it but for the Foley article. Foley explained:

The Atlas Brewing Company of Chicago opposed Atlas Brew Works’ application to register ATLAS for beer. The Opposer alleged that “Atlas” was primarily descriptive of a geographic area within Washington D.C., which is where the Applicant is located (“Atlas” is apparently an unofficial nickname of the H Street District). The TTAB rejected this argument, finding that consumers were unlikely to make the connection. The TTAB agreed with the Opposer that there was a likelihood of confusion between the marks, but it found that the Applicant was the senior user (the TTAB did not accept the launch dates of the Opposer’s Twitter and Facebook accounts as establishing priority). The petition was dismissed. Atlas Brewing Company, LLC v. Atlas Brew Works LLC.

Upon reading the opinion, my main takeaway is that the Washington, D.C. brewer tried earnestly and in good faith to find a good brand name, but still had to contend with this expensive dispute. First, they tried VOLSTEAD but House Spirits Distillery shut that down. The Atlas tale and the Foley article further underscore the need to do no less than look around, Google it, conduct a thorough trademark search, engage a specialized lawyer, check TESS, check TTB’s Public COLA Registry, and check LabelVision, when selecting a brand name in a crowded sector. There is not much sign that either party did a particularly good job of scoping out the things that ought to be scoped out, before putting so much sweat and money into a brand, especially since it is getting so clear that disputes are common. In any event, because the Chicago brewer’s opposition was dismissed by the TTAB, it looks like the Washington brewer can shrug this off and move forward with ATLAS as their brand name.

Bourbon-Barrel-Aged Wine

February 19, 2016 by Robert C. Lehrman Leave a Comment

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.”

Beer Cops, Another Side

January 24, 2016 by Robert C. Lehrman 1 Comment

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?

Robert C. Lehrman

LSD Causes Unchill in DC

Beer with a little bit of Clover and FDA

Trump Vodka

Trademarks All Over the Atlas

Bourbon-Barrel-Aged Wine

Beer Cops, Another Side

Federal District Court Declares Federal Ban on At-Home Distilling Unconstitutional

Foreign Producers Should Get Ready for Big CBMA Tax Benefits

No Beer for Putin

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