Bacardi U.S., Inc. is facing a class action lawsuit in Florida due the use of grains of paradise in Bombay Sapphire® Gin. In Uri Marrache v. Bacardi USA, Inc., et al., Case No. 2019-023668-CA-01 (Miami-Dade Cir. Ct. Aug. 9, 2019), the plaintiff alleges that the use of grains of paradise violates a Florida state law preventing the adulteration of liquor with certain ingredients resulting in a violation of Florida’s Deceptive and Unfair Trade Practices Act (FDUTP).
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Minnesota Wine Update
On May 9, 2019, we blogged about the challenge to the Minnesota farm winery statute. The statute allows Minnesota farms to bypass the traditional three-tier method of distributing alcoholic beverages and sell directly to retailers and consumers. To qualify as a farm winery, however, more than 50% of the grapes it uses must be grown in Minnesota. Two farm wineries argued that the statute violated the dormant commerce clause by discriminating against out-of-state grape growers.
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Steer Clear with Your Beer Branding
Avoiding Trademark Disputes in the Alcoholic Beverage Industry
In the first installment of our series on trademark disputes in the alcoholic beverage industry, we identified the risks facing industry participants on the branding front, regardless if they are “entrepreneurs” entering the market for the first time or established companies launching a new brand. As we advised, the risks are significant and have the potential to completely derail your new brand.
Tennessee Alcohol Update
On October 15, 2018, we blogged about Tennessee’s regulations on licensing for retail sales of alcoholic beverages. Tennessee requires residency within the state for two years in order to obtain an initial license. It requires residency for 10 consecutive years to obtain a renewal of the initial license. But the initial license only runs for a year. The statute also requires that all officers, directors and shareholders of corporations to satisfy these residency requirements. The effect of this statute is to prohibit publicly traded corporations from obtaining a liquor license. It also gives a clear edge to Tennessee residents at the expense of out-of-staters.
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Steer Clear with Your Beer Branding
Avoiding Trademark Disputes in the Beverage Alcohol Industry
It is undeniable that craft beverage marketplace – both with beer and spirits – has seen tremendous growth over the past several years. The result is a crowded, somewhat confused and competitive environment where standing out from the crowd is increasingly challenging. While producing a quality product is, of course, paramount, developing a distinctive and eye-catching brand for your latest beer, wine, or craft spirit has become a critical component to success in the industry. In the beverage alcohol business, brand is (nearly) everything. Ideally, that brand will provide a springboard toward future expansion of your product line as the brand becomes known in the market and specifically requested by consumers.
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California’s OEHHA Finalizes Regulation Rescinding Warning Requirement for Coffee
On June 7, 2019, the Office of Environmental Health Hazard Assessment (OEHHA) announced that it has adopted a final regulation eliminating the requirement for coffee to carry a Proposition 65 warning label. The regulation overturns a California State Court decision that found that coffee retailers failed to prove that the chemicals present in coffee, such as acrylamide, pose no significant risk of harm, requiring coffee to bear a warning.
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Minnesota Wine Regulation
Like most states, Minnesota has a three-tier system for distributing alcoholic beverages – the manufacturer sells to a wholesaler who sells to a retailer. Minnesota allows local wineries to apply for a farm winery license, which permits the holder to sell direct to both retailers and consumers. The catch is that the winery must use
TTB Follows FDA’s Lead and Prohibits use of CBD in Alcoholic Beverages
The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently issued an industry circular which makes clear that cannabidiol (CBD), a product derived from hemp, is not permitted in alcohol beverages.
TTB generally consults with the U.S. Food and Drug Administration (FDA) when establishing whether an ingredient for use in an alcoholic beverage is safe.
Constitutional Requirements For Distribution Of Alcohol
The Supreme Court recently granted certiorari to review an opinion of the Sixth Circuit on constitutional limits on states’ ability to regulate the distribution of alcohol beverages. Tennessee Wine & Spirits Retailers Ass’n v. Byrd, No. 18-96.
With the advent of the 21st Amendment in 1933, which turned control of alcohol beverage regulation over to the states, temperance groups insisted on a rigid, three-tier system for the distribution of alcohol. Typically, under state laws a manufacturer of alcohol beverages can only sell to a distributor and it may not have any ownership interest in the distributor. The distributor in turn sells to retailers who sell to the general public. Neither the manufacturer nor the distributor may have any ownership interest in the retailer. Consumers can only purchase alcohol beverages from retailers.
The rise of the internet and direct delivery companies such as Amazon has undermined this rigid distribution system. The State of Michigan amended its statute to permit wineries located in Michigan to sell directly to consumers. Out-of-state wineries, however, could only sell to Michigan distributors. In Granholm v. Heald, 544 U.S. 460 (2005), a surprisingly divided Supreme Court held, 5-4, that its anti-discrimination holdings under the Commerce Clause trumped the states’ residual authority under the 21st Amendment. It also held that the direct-sale statute impermissibly discriminated in favor of in-state wineries.
Granholm settled the question of whether states could discriminate against out-of-state manufacturers. It left open the question of whether the Commerce Clause also protected wholesalers and retailers and the lower courts are divided on that point. Granholm clearly held that the three-tier system is not a per se violation of the Commerce Clause. Based on that holding, the Second, Fourth and Eighth Circuits have all held that Granholm does not apply to wholesalers and retailers. The Fifth and Sixth Circuits have reached the opposite result.
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Coffee Now Served With a Cancer Warning in California
Coffee sellers in the State of California will now be required to provide cancer warnings on their coffee products. On March 28, 2018, a California State Court issued a Statement of Decision in a Proposition 65 (Prop 65) case that found that Starbucks and other retailers failed to prove that a chemical found in coffee