policy

Atlas Brew Works sued the United States on January 15, 2019 in the DC District Court. Atlas is a brewer based in Washington, DC and argued that the law does not allow the government to, at the same time, require a label approval for beer, when the shutdown makes it impossible to obtain such an approval.

As of this writing, Google has 48,600 articles about the controversy, so I will refrain from summarizing the case, or trying to guess who will win. Instead, I will set out some of the juiciest morsels, from the fascinating arguments presented by both sides. On one side is the famous lawyer Alan Gura, representing the beer company. On the other side is the Acting Attorney General Matthew Whitaker and Assistant U.S. Attorney Jason T. Cohen. The judge is the hugely accomplished Christopher R. Cooper.

Atlas’ complaint, filed January 15th, begins:

The First Amendment never “shuts down.” … The [FAA Act] subjects Atlas to criminal penalties should it ship beer with unapproved labels in interstate commerce. But Congress has not enacted legislation funding the issuance of [COLAs] for beer labels at the present time. There is no telling whether or when such legislation might be forthcoming, or how long it might take the government to approve COLA applications...

Summer is upon us, which means it’s time for crisp beers, sparkling wines, and the newest member of the “refreshing” alcohol beverage family – hard seltzer. By now you’re likely aware of hard seltzer, but despite its growing popularity, consumers are still relatively limited to a few national brands and a handful of regional brands. High consumer demand and room for competition make entering the hard seltzer market an appealing proposition. If you are considering launching a line of hard seltzers, keep reading, as this article lays out some important regulatory considerations to keep in mind.

The majority of hard seltzer is produced from either a brewed-malt (“clear malt”) or brewed-sugar (where 100% of the fermentables are derived from non-malt sugar) base, with carbonated water and added flavor. Under Alcohol and Tobacco Tax and Trade Bureau (TTB) regulations, both malt- and sugar-based hard seltzers are considered “beer,” but only malt-based hard seltzers are also considered “malt beverages.” This means that federal beer rules (27 CFR Part 25) apply to both malt- and sugar-based hard seltzers, but federal malt beverage labeling and advertising rules (27 CFR Part 7) apply only to malt-based hard seltzers.

The upshot of all this is that producing a hard seltzer with either type of base requires a Brewer’s Notice, and – if you’re...

There is lots of focus on what the craft people are up to, and certainly there is much movement in that regard. But here we turn back to the big companies, and how they see things. Artisan Spirit magazine recently published my email interview with Tom Lalla. Tom was the head lawyer at Pernod for many years. An excerpt is below, and you can find the full article at the link.

Who were the legendary beverage lawyers before you, and what made them so?

The outstanding, legendary beverage lawyer of the past few generations was Abe Buchman. I worked with Abe and his firm for 10 years and then continued to work with him when I joined Pernod Ricard. Abe was a mentor and a role model for tireless devotion to the industry. Abe taught me the necessity of finding practical solutions for our clients’ issues.  Sometimes, as lawyers, we lose sight of being practical. We get hung up in the legal niceties of an issue. What Abe stressed was that we find a solution that was practical for the client and accomplished the client’s goals without running afoul of the legal requirements. Another legend was Bill Schreiber.  I had the pleasure of working with both Bill and Abe when the Buchman and Schreiber firms...