I stumbled upon an interesting article in the Kentucky Journal of Equine, Agriculture, and Natural Resources Law of all places. Even though it’s based in Kentucky, I am startled to see that perhaps Mark Brown missed this, in the wee hours of the night, when he combs through the booze press near and far.
The article is entitled “‘Handmade’ or ‘Made By Hand’: Assessing Alcohol Labeling Practices and Evaluating a Popular Consumer Class Action.” It came out during the past year or so. I have followed the handmade litigations, a lot, in these pages. So I don’t want to rehash that stuff. I will mostly highlight a few points in this law review article, by then law student Hannah Simms. She says:
- “In 2013 alone, the alcoholic beverage industry in the United States generated nearly $456 billion in total economic activity.” This seems mighty high to me.
- “… courts have been entirely inconsistent on whether or not to apply safe harbor provisions contained in a majority of state deceptive and unfair practice laws.“
Noting that the trends are not yet settled, the author wraps up by saying:
If the courts are unwilling or unable to address the situation, the responsibility to take action to protect the industry must shift to the TTB. The TTB could provide clarification of the COLA approval processes that seem to be a hang up for courts. The agency could also opt to issue definitive rulings that provide guidance to industry officials on the correct use or understood meaning of common terms used on labels. This would not only give TTB officers some direction when approving or denying COLAs, but it would also give manufacturers an opportunity to protect themselves and avoid these suits that involve costly litigation since they would have a better understanding of the acceptable use of the terms. If this problem continues unaddressed, liquor consumers and connoisseurs will come out the real losers, because whether manufacturers are forced to go through a costly re-labeling process or continue to litigate these issues in court, it is sure to affect the market price of our favorite beverages.
Since the publication of this article, the pace of the alcohol beverage labeling litigations seems to have eased up markedly, especially since very few courts seem willing to dole out harsh outcomes, beyond the heavy costs of litigation in general.
cigars are the same thing handmade or made by hand!
Nice idea but: issues such as interpretations of word meanings or phrases cannot be accomplished by ruling. Meanings of phrases like “hand made” or “craft brewed” are simply too subjective for TTB or anyone else to provide a definition without either vast public input, or vast public outcry when published. Defining words or phrases like these requires the full regulatory process with public input. Unfortunately in the present situation TTB or Treasury will not undertake such a regulatory process without a direct Congressional mandate. The net result is, of course, exactly what is occurring: undefined and unclear labeling and advertising terms which lead to lawsuits that may or may not be resolved by the courts.