At long last, MillerCoors filed its response, in the Blue Moon case, on July 13. The company makes some good arguments, and to my ear, these seem best:

1. MillerCoors is expressly authorized by state and federal law to use the Blue Moon Brewing Company trade name.
   1. The safe harbor doctrine applies where either state or federal law has blessed the conduct at issue. (Here, MC nemesis, A-B, did the former a huge favor in the form of winning the Lime-A-Rita case just in time.) The company is careful to point out that the laws and regulations, not necessarily the label approvals, create the safe harbor.
   2. Should a court find liability under these circumstances, where a registered trade name is used instead of the parent company name, it would dramatically change the way that many corporations operate, effectively standing corporate America on its head. Trade names are used in many industries, and many brands have surprising corporate relationships. Just to name a few: Jiffy Lube is owned by Shell Oil Company, Haagen-Dazs is owned by Nestle in the U.S., Taco Bell and Kentucky Fried Chicken are owned by Yum! Corporation and Ben & Jerry’s ice cream is owned by Unilever.
2. The company’s trade name and trademark registrations put Plaintiff...

Sorry to disappoint anyone, but that’s not Attorney John Messinger over to the left. But it is John, over to the right, covering Gluten-Free Labeling for Beer, Wine and Spirits, in a recent issue of Beverage Master Magazine.

The full article is here. The first few paragraphs are here:

Gluten-free foods and beverages were one of the popular trends of 2014. In the past year, over 70 new alcohol beverage label approvals mentioned “gluten-free,” which is more than the combined total of gluten-free labels in 2012 and 2013. Breweries, wineries and distilleries who wish to cater to the gluten-free diet market and provide those with celiac disease additional choices can do so, but there are a fair amount of rules and red tape to wade through. This article breaks down the federal requirements for gluten-free labeling. Background The Alcohol and Tobacco Tax and Trade Bureau (“TTB”) regulates the labeling and advertising for the majority alcohol beverages. In May 2012, TTB issued an interim policy on gluten content statements in the labeling and advertising of beer, wine and distilled spirits, which allowed some products to make gluten-free claims (TTB Ruling 2012-2). This policy was issued pending guidance or rulemaking by the Food and Drug Administration (“FDA”) on the subject of gluten-free claims. In...

A couple times a year I hear about an alcohol beverage that is somehow, against all odds, “good for you.”

It happened again this week and so I eagerly rushed to the Public COLA Registry to see what was new. Lo and behold, I found the squirrel. A mighty one — or so it purports to be. The press release purported this new beer to have something like 10 times the protein compared to Bud Light.

The average analysis for Bud Light is above, to the right, and the one for Mighty Squirrel is to the left. The TTB-approved label shows the product to be a “Whey Beer.” Whey is apparently some sort of cheese protein and byproduct so I am turning this over to the cheese law blogger extraordinaire, for further elucidation.

There is no word yet, on how hard the Squirrel folks tried to push on this label. I don’t see any signs that they pushed particularly hard. For example, the rodent in question does not seem to have particularly impressive musculature (or even a tiny but visible rodent six pack). The whey, good-for-you-beer, and protein angles are not particularly new. Here is whey from way back. Here is protein from way back (in the form...

A few weeks ago I had the great honor of traveling to Chicago to co-present a webinar with Simon Fleischmann and Tom Cunningham. Tom and Simon are expert defense litigators at the Locke Lord law firm, and they have deep experience representing food and beverage companies in class action lawsuits around the country. I say it’s an honor because I have learned a huge amount about class action litigation over the past year, from Tom and Simon. For any company in a jam, I don’t think they could do better than to have these fine lawyers on their side.

The webinar is entitled “Spirits Industry Under Fire:  The Threat of Class Action Litigation.” More than 125 lawyers and beverage executives tuned in for the live event. In addition, Locke Lord recorded the webinar. The audio file is here. It includes about 20 minutes from Tom (what the cases are about and why you should be concerned), 20 minutes from Robert (the TTB aspects, Tito case, and why federal approval is not a silver bullet), then 20 minutes from Simon (the first Maker’s Mark decision, and how to lessen the risks). This is followed by about 20 minutes of questions from the live attendees. You can also view the PowerPoint at the link, and download a booklet on the...

Here is an innovative new spirits product called Cocktail Caviar. It is “burst-able pearls of naturally flavored spirits.” You can toss them in some wine, or freeze them and add them to other drinks. The product is so new that there is not much about this product on the web so far.

If I understand correctly, these chickpea sized “pearls” are a giantized version of the tiny booze droplets that make up Palcohol. Here, the alcohol is encapsulated in a layer of kelp and so it not quite a liquid and not quite a solid. Maybe there is shock fatigue after the Palcohol surprise, or the size of the pearls makes an enormous difference, or it’s the upscale marketing — but it does not seem like this product is bound to raise hackles the way the powderized product has. Steven Hollenkamp, the man behind this product, explained that part of the appeal of the brand name is that “caviar” is not at all likely to appeal to minors.

I happened to meet Steven this week and he explained:

We worked diligently with TTB getting Cocktail Caviar approved. This included 240 emails, dozens of phone calls and several in-person meetings with TTB administrators, one of which was a lengthy sit down meeting with several high-ups at...