This webinar is today. I should have put this up a long time ago to give you all a chance to sign up. Anyway, it should be great because where else can you get some Tom Cunningham and Simon Fleischmann for less than the cost of a few rounds of fancy cocktails? The signup link is here and it’s not too late to sign up. The topic is all the recent lawsuits like Tito’s, Maker’s Mark, Beam, etc. Tom and Simon are seasoned trial lawyers on the defense side, and I will cover the regulatory issues.

Kombucha law is on the front page of tomorrow’s Wall Street Journal. Because kombucha law is so interlinked with alcohol beverage law, this is to underscore some alcohol beverage points only touched upon lightly in the article (subscription required).

1. TTB has decided that most kombucha is beer for tax and permit purposes.
2. This is because it is fermented tea. It is beer rather than a “malt beverage” because it lacks hops and malted barley.
3. Most kombuchas are over 0.5% alcohol by volume during production, but less than that amount after bottling and at consumption. These can be called over-under kombuchas.
4. It is ok for a kombucha to be 0.5% alcohol by volume or higher, after bottling, but only if the product jumps through most of the hoops required for Budweiser. This would include permits, taxes, a Government Warning, no sales to minors, sales via the three tier system. These can be called over-over kombuchas.
5. Unlike Budweiser, the legal requirements would not include TTB label approval, because, like gluten free beer, the product lacks the hops and malted barely that would otherwise confer labeling jurisdiction upon TTB.
6. Most kombuchas need FDA rather than TTB labeling.
7. The article mentions a few recent lawsuits on these topics. So far there are five class action lawsuits. Two of...

Last week I had the honor of participating in AHPA’s webinar on kombucha law. Part of the recording is above and here. The American Herbal Products Association has been active since 1982, and now has more than 300 food, beverage and supplement members. It was an honor because of the eminence of my co-presenters:

1. Justin Prochnow, FDA lawyer at Greenberg Traurig, Denver
2. Will Garvin, FDA lawyer at Buchanan Ingersoll, Washington
3. Peter Evich, Lobbyist, Van Scoyoc Associates, Washington
4. Art Libertucci, Consultant, The Buckles Group, Washington

Justin spoke on bottle bills issues. Will covered FDA labeling. Peter covered pending legislative issues. Art helped organize the webinar. I spoke on the various TTB issues raised by kombucha. It was also an honor because the issues are so timely and challenging. Kombucha is surging in popularity. It raises difficult issues such as:

1. is it beer, wine, cereal beverage, malt beverage, food, supplement, or some combination
2. what TTB permits may be needed
3. does it need FDA or TTB labeling, or both
4. what taxes apply
5. what penalties may apply, if you blow it

The entire video is about 2 hours, but I have chopped it down to the 30 minutes or so that covers the TTB issues (1-5 as listed above). The entirety, with about 20 minutes of...

Remember the internet went wild a few weeks ago when it sounded like some goofball was saying it had nearly exclusive rights to use the term Kentucky? The Associated Press ran with it here: “The owners of Kentucky Mist distillery say University of Kentucky attorneys have sent them a letter asserting the school owns the rights to the word ‘Kentucky,’ at least on clothing.” This story just keeps getting better and better, because first it just sounded crazy, and now it has, perhaps, blown up in the instigator’s face. I am sure you can picture the new crop of UK freshmen lovingly mashing this moonshine in the dorm or maybe in a chemistry lab run amok.

Kentucky Mist Moonshine Inc. (KMMI) filed a declaratory judgment action against the University of Kentucky in federal district court yesterday. In its complaint, Kentucky Mist asks the court to declare that its KENTUCKY MIST MOONSHINE mark does not infringe or dilute UK’s registration for KENTUCKY. Kentucky Mist also asks the court to cancel UK’s registration.

By Frank Knizner, J.D., Dan Christopherson, Trademark Lawyer, and Robert C. Lehrman, Attorney

UK obtained a federal trademark registration for KENTUCKY for clothing and other goods in 1997, after alleging it had acquired distinctiveness in the mark through its substantially exclusive...

Here is a good and recent Warning Letter from FDA. I say good because it certainly appears to be well written, and to explain the law in a way that is sometimes hard to glean from the boring old regulations. Also, it seems to be a good thing, that we have a government whose first response is to send a firm letter, instead of, for example, some jackbooted thugs. FDA seems to put out a handful of such Warning Letters per month, on food and food labeling. I am looking at this today because I often wonder why TTB does not get into the Warning Letter business. I think it could be a good way to explain some of the arcane rules so the people who want to comply, have a better chance to do so. Of course, like in so many other areas where TIWWCHNT, another lawyer explained how such letters can badly backfire. He explained that such letters, especially when they are good and clear, tend to serve as a template, for rapacious plaintiff class action lawyers to feast upon.

Here are some useful lessons, from this snapshot/letter, roughly in order of appearance in the letter:

1. FDA really does conduct food inspections in far away places such as Japan.
2. It is weird...