Posts by: Jonathan Dunitz

Government Shutdown Impacts Breweries

Planning to brew something that needs a formula approval or a COLA approval? Have a new facility in the works? If so, you might want to reconfigure your schedule because the government shutdown has caused the TTB to suspend many of its functions.  While you can still access certain functions on the TTB’s website, including Permits Online, Formulas Online, and COLAs Online, those applications will not be reviewed until after the government shutdown is over.  In addition, TTB personnel have been told not to report to work and, according to the website, are prohibited by federal law from volunteering their services during the shutdown.  This means that if you have a question or an issue with your application, nobody at TTB is available to assist you. Furthermore, TTB cannot update its website during the shutdown, so it is possible that some of the information will be outdated or otherwise inaccurate. We still recommend that you file the applications because there is no telling how long or short the shutdown will be.  Moreover, if others file and you do not, there could be a significant backlog once regular service is restored, which could further delay approval of your application. (more…)

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The TTB is Watching – Beverage Community Asked to Self-Report Violations

As the TTB enters a more user-friendly phase with its updated online registration portal, it is important to remember that it remains an enforcement arm of the federal government for the beverage alcohol community. In a somewhat ominous circular, the TTB requested that “each industry member review its promotional business practices to assure that such activities comply with the letter and spirit of the Federal trade practices laws and regulations.”  Not only did it ask for each community member to review its practices, the TTB also “encourage[d] each member of the regulated community to voluntarily disclose its own violations upon discovery.”  According to the circular, voluntary disclosure could lessen the actions, if any, taken by the TTB in response to those violations.  To assist with that compliance, the TTB circular provided a link to the Federal trade practice laws and regulations.  It should be noted that the TTB can seek to suspend or revoke basic permits or initiate criminal referrals.  (more…)

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A Guy Unexpectedly Walks into a TSA Bag Inspection: Don’t Let TSA Snag your Swag and Other Promotions Gone Awry

With the increasing popularity of beer tourism and the statistics on brand loyalty (or lack thereof) among craft beer lovers, breweries may be looking for ways to promote their brand and keep their brewery’s name on the lips of consumers.  Some have started loyalty programs, while others find alternate fun and distinctive ways to promote their brand.  We continue to be amazed by and applaud the craft brew community’s innovative approach to growth and marketing.  We encourage you to keep the craft beer community unique, creative and fun.  But, sometimes promotions go wrong in unexpected ways that at best are embarrassing, and at worst run afoul of the law.

So let’s start with a recent mistake that led to the risk management guy (your author) getting stopped by TSA on his way home from speaking on that very topic at a national conference.  I assume that most of this conference’s attendees flew there.  I would also guess that many who flew opted not to check a bag.   Those two simple facts were overlooked by at least one conference exhibitor whose good intentions in handing out carabiner key chains and pens went awry.  (more…)

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TTB Expands Allowable Changes to Labels without Resubmission, but Reminds us that One Label “Does Not (Necessarily) Fit All”

Certificate of Label Approval (or COLA) can be one of the more frustrating processes for brewers.  Each label must be approved by the Alcohol and Tobacco Tax and Trade Bureau (TTB).  Once the COLA is issued, only certain, limited changes can be made to the label without resubmitting it for new approval.  In many situations, there are state requirements that must also be met.

Until March 26, 2018, there were only 34 categories of label revisions that could be made without a new application.  On March 26, 2018, the TTB issued Industry Circular Number 2018-2, which amended an existing category and added three new categories of label revisions that may be made without submitting a new application (click here for the full list of categories). (more…)

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Social Media is an (age) gated community

Few brewers would dream of serving someone in their brewery or tasting room without checking an ID to ensure that all the craft beer lovers in the room are of legal drinking age.  When it comes to their virtual breweries and tasting rooms, however, there appears to be a bit of laxness in ensuring that everyone is age appropriate.   The problem with ignoring the age of virtual visitors is that Marketing and Advertising Codes issued by industry associations require age gates for websites and on social media. Age gates are also recommended by the Federal Trade Commission (“FTC”).

Most craft breweries have age gates on their websites, but many are ineffective and fail to meet the Marketing and Advertising Code or the FTC’s recommendations.  There are, with some variations, three basic types of age gates for websites.  First, there are what I would call passive age gates.  These simply state that by viewing the website the viewer agrees or acknowledges that he or she is 21 or older.  It is often at the bottom of the page or another location where it is easily missed or ignored.  Second, are age gates that require some interaction, but nothing more than a simple click.  These have a popup or landing page that ask whether the viewer is at least 21, requiring the user to click on “yes” or “no” to enter the website.  Obviously, if the viewer wants to get into the website, he or she will click yes regardless of age. Third, are age gates that actually require the underage user to do some math to gain entry.  While a diligent viewer will figure it out, these age gates require a bit more of the user than simply opening the webpage or clicking “yes.”  Instead, the user is required to enter his or her date of birth – and that date of birth must be at least 21 years earlier – before gaining access to the website. (more…)

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In the Beer Aisle: Independent Craft Brewers to Stand Out from the Rest of the Pack(s)

The Brewers Association (BA) recently launched a seal to certify that a craft brewer is independent.  This seal is, at least in part, in response to the global beer monoliths buying up formerly independent craft brewers as the large brewers’ share of the market started to shrink.  With more macro producers claiming independent micro and craft beer status via acquisitions, the time is ripe to clarify for consumers whether the beer they are buying is truly from a small, independent, craft brewery. (more…)

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Labels – It’s Not just the TTB that’s watching

As purveyors of beverages containing alcohol, most craft brewers, distillers and wineries are aware of the Alcohol and Tobacco Tax And Trade Bureau (“TTB”) rules for labels, and the sometimes onerous task involved in getting those labels approved.  To avoid extra expenses and delays, those who are not aware of the TTB requirements need to quickly get up to speed on those rules or engage counsel who can guide you through the process.  We cannot overstate the importance of following TTB rules, and making sure every label change conforms with the rules, including new approvals where necessary.  The TTB takes the rules very seriously.  So seriously that it annually conducts a random compliance investigation and publicly publishes the results of that investigation. (more…)

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