Archive for the ‘alcohol beverages generally’ Category
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 merged in 1986. Having both Abe and Bill together in the same office was a beverage alcohol lawyer’s dream come true. With so much shared knowledge about the law, the industry, and its players and so many exciting projects being worked on by them, it was a unique moment in my career.
Very few other people have a vantage point as good as Tom’s, after many decades building Pernod, and working at a top law firm specializing in alcohol beverage matters.
I heard about this on the radio this morning, on the way in. Apparently it’s illegal to allow farms, or picking fruit for free, on New York City lands — so these guys put it on a barge. It struck me as pretty crafty. That is, crafty in a good way.
The rules say:
Public foraging and policy
According to the New York City Parks Department
No person shall deface, write upon, injure, sever, mutilate, kill or remove from the ground any trees under the jurisdiction of the Department without permission of the Commissioner.
No person shall deface, write upon, sever, mutilate, kill or remove from the ground any plants, flowers, shrubs or other vegetation under the jurisdiction of the Department without permission of the Commissioner.
Because of the common laws of New York City’s waterways, Swale is able to act as a test case as an edible public food forest. Swale is built atop a barge that was once used for hauling sand to construction sites before it was re-purposed for growing food.
A recent issue of the TTB Newsletter had some good information about Flavor Ingredient Data Sheets — often referred to as FIDSs. FIDSs can be very important, and so it is good to have this information readily available.
The FAQ explains that a FIDS is typically needed when “you’re using a compounded flavor that was purchased from a flavor manufacturer. … For this purpose, a compounded flavor includes any flavor, cloudifier, or blender that consists of multiple ingredients that are combined to produce a particular taste characteristic.” The same FAQ provides a blank, fillable FIDS form.
The FAQ emphasizes that you should get the FIDS from your flavor supplier; it is not a document that can or should normally be prepared by the producer of the end beverage. The FIDS form first burst onto the scene 20 or more years ago, and has not changed very much in the intervening years. It covers the basics like, is the flavor approved, safe, natural, and does it contain any colors or other ingredients with labeling or safety implications. In an attempt to go a bit beyond where TTB’s document already goes, here are a few common examples of where a FIDS is and is not indicated.
Cherry Liqueur (made with Natural Cherry Flavor)
- Get a FIDS for the cherry flavor
Cherry Liqueur (made with cherries)
- Don’t bother with the FIDS because, as above, the FIDS is intended to be used with compounded flavors
Cherry Liqueur (made with artificial flavor)
- Trick question because liqueurs must contain at least one natural flavor and can’t contain any artificial flavors, so the FIDS is not going to help here
Straight Bourbon Whiskey
- If you have a FIDS you are probably going in the wrong direction because this category should not have anything added
Malt Beverage with Natural Cherry Flavor
- Needs a FIDS
Malt Beverage Brewed with Cherry Juice
- Does not need a FIDS or a formula approval. Does not need a formula approval due to the tremendously important liberalizations at TTB Ruling 2015-1 and the accompanying list of exempt ingredients and processes. Does not need a FIDS because the juice is not compounded.
Grape Wine with Natural Cherry Flavor and a Cloudifier
- You need a FIDS for the cherry flavor, and for the cloud. Even though the cloud is not really a flavor and probably does not need to be mentioned on the label, it does need a FIDS because it’s probably compounded (of various ingredients) like a flavor.
As soon as you start talking to your flavor company, it’s worth asking which flavors do and don’t already have a FIDS. That’s because if you need one, but the flavor company does not have one yet, it could take them quite a few weeks to get the TTB flavor approval needed as a foundation for the FIDS. You should not assume all flavors have a FIDS because not all flavors are made in the US, or intended for use in alcohol beverages, where the above rules most directly apply. As yet one more example, if you are making pickle-flavored potato chips in Parguay, you probably don’t need a FIDS or a TTB formula approval.
In the past, for a long time, TTB would say no warnings are allowed, but for those mandated by Congress: “According to the Surgeon General…” (as to getting pregnant, driving and whatnot).
Slowly but surely, however, this principle is colliding with the pent-up penchant for warnings throughout society. The pregnant lady came calling about 10 years ago. Bacardi’s 151 warning goes way back. There is even this spoof of the whole fondness for warnings.
In the latest iteration, these Prop. 65 warnings are starting to pop up. Off toward the upper right the approved label says:
CA PROP 65 WARNING : SOME MATERIALS USED IN THE COLORED DECORATIONS ON THIS CONTAINER CONTAIN CADMIUM, A CHEMICAL KNOWN TO THE STATE OF CALIFORNIA TO CAUSE BIRTH DEFECTS OR REPRODUCTIVE HARM.
The label approval for this beer, along with a qualification about this extra warning, is here . It seems like labels of this sort started to pop up around 2012, and so far there at least 50 such approvals (referring to Prop. 65 and things like cadmium). Here is a second, albeit Stupid, example .
TTB approved this label July 18, 2017 . There are very few other TTB labels that mention CANNABIS and SATIVA. Perhaps this product has hemp seeds, along the lines of this 2014 label approval . Then again, perhaps the Lithuanian product merely tastes like hemp or cannabis, as a literal reading of the label would suggest.
Though I see a few signs of cannabis and hemp , in recent approvals, I am not seeing any that mention CBD (aka, cannabidiol). CBD is one of many cannabinoids in cannabis; it is usually viewed as not intoxicating , though it may have various other impacts on brain function. This April 20, 2017 article does a good job of explaining about the barriers to seeing CBD in an alcohol beverage product, or on the label.
Although Dad and Dudes (“D&D,” the Colorado brewer) probably wanted to market something along the lines shown in the photo above, the actual federal approval is quite a bit less adventurous, as in the label image here.
The text near the green arrow, on a related approval , tends to show that D&D grudgingly banished the “additive(s)”.
The article says D&D:
will be fighting the federal government over a beer brewed with non-psychoactive CBD. …
Last September, Dad & Dudes was the talk of the town when it became the first brewery in the country to gain approval from [TTB] for a non-THC, cannabis-infused beer. The process took about a year, because the TTB required a thorough analysis of the ingredients and the recipe before it would give formula approval for Dad & Dudes’ patent-pending process and its beer.
[D&D] then announced plans for a new beer, General Washington’s Secret Stash, which would be brewed with cannabidiol — a hemp extract also known as CBD — and distributed in [a few states].
But on December 14, the U.S. Drug Enforcement Administration surprised the hemp and cannabis industries nationwide by declaring that it still considered marijuana derivatives like cannabidiol and hemp extract — even the non-psychoactive ones — to be Schedule 1 substances, just like marijuana. The announcement meant that these substances couldn’t be sold or carried across state lines, even if they are legal in some states.
It also meant that the TTB, which had granted formula approval to Dad & Dudes, no longer wanted the brewery to make the beer. The bureau gave the brewery ten days to surrender its formula.
TTB’s hemp-related policy is here and seems to date all the way back to 2000, a startlingly long time ago, in view of all the change swirling around these issues. DPF’s Lex Vini blog provides a good reminder about why it would not be prudent to plow ahead and make such products, before the policy gets thrashed about or modified:
California newspapers have recently reported on in-state breweries and wineries that are making CBD-infused products. Given TTB’s treatment of Dad & Dudes Breweria, however, it is clear that the federal government believes that any such product requires a TTB-approved formula. Moreover, given recent statements by the U.S. Attorney General, it seems unlikely that the current administration would permit TTB to grant formulas for the production of a product that involves the infusion of a Schedule I drug. Producers engaged in making CBD-infused alcohol products absent a formula may be putting their federal licensing at risk until such time, at least, as the DEA changes its mind about the classification of marijuana extracts.
Watch this space for changes to the U.S. CBD policies.