Aside from the regulatory requirements imposed on beer labels, as discussed in the Anatomy of a Beer Label: Part I post on COLAs, brewers should consider protecting the trademarks featured on their beer labels.

Trademarks

Since every brewer has a brand, consumers most commonly encounter brewers’ trademarks in the form of a brand name or logo.  Trademarks serve as source identifiers to distinguish the origin of goods and services and avoid consumer confusion.  Typically, a trademark may be a word, phrase, design, or a combination of such items, though trademarks may also protect sounds, colors, and smells under certain conditions.  For a beer label, trademark law is best suited to protect the brewery name, sub-brand or inventive beer name, and any slogans or logos. Continue Reading Anatomy of a Beer Label: Part II

During the height of the pandemic, most states implemented legislative changes and/or policy modifications for sales of alcoholic beverages for the duration of the state’s declared emergency. As the state of emergency orders are lifted, we are seeing most policies go back to pre-COVID licensing requirements and service restrictions, while some states are taking the opportunity to make some legislative changes and policies permanent. Some changes of note are as follows:

Indiana

  • Growlers and carry out service for certain retail restaurants has been rescinded.
  • Curbside service and delivery to customers in an area adjacent to the licensed premises has been rescinded.
  • Original documents such as tax clearances are once again required and in person hearings have resumed.

Pennsylvania

  • Pre-pandemic food, seating, square footage, and health permit requirements have resumed.
  • Retail licensees permitted to sell beer/brewed beverages and/or wine for off-premises consumption must also make these products available for on-premises consumption.
  • Retail licensees are no longer permitted to sell mixed beverages and bottles of liquor to go.
  • Temporary extensions for outside seating are no longer being processed on an expedited basis, extensions granted are no longer valid and those seeking to continue outside service pursuant to extensions granted during the state of emergency must file an application for extension of premises in the ordinary course.
  • The clock on licenses in safekeeping which was paused during the state of emergency order are restarted.

Virginia

  • The COVID-19 practice of allowing restaurants to continue to sell cocktails to go with a meal has been extended.
  • Nonprofit corporations or fundraisers holding banquet licenses that are authorized to sell wine in closed containers for off-premises consumption can ship wine within Virginia, if they are conducting a fundraiser through an online meeting platform.

For specific questions regarding these are other states changes, please contact Adena Santiago of Husch Blackwell.

A beer label tells consumers more than just what the bottle or can contains (e.g., brewed hops, grain, yeast, and water).  Labels inform consumers of important facts like the alcohol content by volume (ABV) and the net contents of the container, and may also provide insight on the flavor profile of the beer or the ethos of the brewery.  Some beer labels may even constitute works of art.  However, brewers should be aware that certain regulatory requirements apply to beer labels in the United States, and that certain forms of intellectual property can protect different aspects of beer labels.  This post is part of a three-part series, with Part I describing the regulatory requirements for a brewer’s beer label and the authorizations and protections those regulatory requirements confer. Continue Reading Anatomy of a Beer Label: Part I

The U.S. Department of Agriculture (“USDA”) announced late last month that it will be taking measures to support the enforcement of the Packers and Stockyards Act (“P&S Act”), a 100-year-old law designed to protect “poultry farmers, hog farmers, and cattle ranchers from unfair, deceptive and anti-competitive practices within the meat markets.” The proposed revisions involve additional changes to the unlawful conduct provisions of Title II of the P&S Act as well as a menu of grant and loan programs to address problems throughout the food supply chain. Continue Reading USDA to Begin Work to Strengthen Enforcement of the Packers and Stockyards Act

The Craft Beverage Modernization Act (“CBMA”) provisions of the Tax Cuts and Jobs Act of 2017 reduced excise taxes levied against all alcoholic beverage producers, large and small, foreign and domestic. In 2020, Congress made those tax cuts permanent and transferred responsibility for administering CBMA imported alcohol provisions from U.S. Customs and Border Protection (“CBP”) to the Treasury Department effective December 31, 2022. Domestic industry takes direct advantage of CBMA benefits when paying tax to TTB. However, foreign producers and importers will soon have to navigate a new system to take advantage of CBMA tax credits. Continue Reading Updates to the CBMA: How to Navigate TTB’s Proposed 2023 Refund Claims for Imported Alcohol System

On January 6, 2021, we blogged about two California farms’ challenges to California’s regulation requiring agricultural producers to grant unions access to their property to recruit workers.  The regulation required access for three hours a day – one hour before work started, one hour at lunch and one hour after work – for a maximum of 120 days per year.  The Ninth Circuit held that this regulation did not constitute a per se taking for purposes of the Fifth Amendment because it did not require access on a 24/7 basis.

In a 6-3 opinion on clear ideological lines, the Supreme Court reversed.  The majority opinion held that the Court had recognized two kinds of takings:  physical occupation of property, which is a per se taking, and regulatory takings, when the regulation goes “too far.”

The majority held that the California regulation was a per se taking because it appropriated the growers’ property for the benefit of the unions.  The courts have long held that one of the most fundamental elements of the right of property is the right to exclude others, and the regulation deprives the owners of that right for up to 360 hours a year.  It effectively forces the owners to grant an easement to the unions.

The majority held that the temporary nature of the easement was irrelevant.  As a matter of common sense, it makes no sense to apply one set of rules to an easement available 365 days a year and another to an easement 364 days a year.  As a matter of law, a number of prior Court cases had held that temporary invasions of private property were nonetheless a taking.  For example, a 1946 case found that the government had taken plaintiff’s property by periodically flying aircraft over it less than 100 feet off the ground.

The majority also held that it made no difference that the regulation did not provide a common law easement as defined by California law.  While state law is generally the source of property rights, it would be a wholesale elevation of form over substance to hold that the permanent, periodic access allowed by the regulation was not a taking.

As we predicted in our January 6 blog post, the majority went out of its way to emphasize that its holding would not impact ordinary health and safety inspections.  The majority held that there is a clear difference between a trespass and a taking.  It also held that there were various common law exceptions to the law of trespass, such a public official’s right to arrest or to engage in a reasonable search.  And there is nothing wrong with conditioning a permit or license on the condition that the recipient allow reasonable health and safety inspections.

Justice Kavanaugh concurred.  While the case did not involve labor unions, Justice Kavanaugh thought that the Court’s opinion in NLRB v. Babcock & Wilcox strongly supported the result.  In Babcock & Wilcox, the Court held that Congress could authorize labor unions to enter on private property to organize workers only when the unions had no other reasonable means of communicating with the workers elsewhere.  The day of the company town is over and there was no reason why union representatives could not contact workers at their place of residence.

The ruling does not mean that California cannot continue to require producers to allow limited union access to their premises.  It only means that California must amend its statutes to authorize just compensation to the owner.  The opinion does not address what compensation would be just or how it should be calculated.

Starting in 2024, U.S. consumers are going to start seeing new formulations of yogurt on supermarket shelves. The U.S. Food and Drug Administration (FDA) has released an amended standard of identity for yogurt as part of its Nutrition Innovation Strategy. According to the FDA, the new, modernized standard of identity for yogurt allows for greater innovation and technical advances in yogurt production while maintaining yogurt’s basic nature and essential characteristics. Continue Reading FDA Amends Yogurt Standard of Identity

Partner Carlos Rodriguez has authored an article on International Trade Insights regarding a troubling pattern of disappearing service contracts in ocean shipping and the resurgence of ocean tramp practices.

This occurrence has impacted agricultural companies which export to China, as carriers are holding cargo at the terminal for several weeks, then increase shipping rates, and if the higher rate is not accepted the cargo will not move.

For more information, please read the article here.

Recently, President Biden signed the Food Allergy Safety, Treatment, Education and Research (FASTER) Act. The law adds sesame to the list of major allergens, requiring its disclosure on food labels as an allergen.  Food manufacturers have until January 1, 2023 to add sesame allergen statements to their labels.

Current food labeling regulation allows sesame to be declared as a “natural flavor” or “natural spice.”  This creates uncertainty for consumers allergic to sesame when they review product labels at their local grocery stores. Continue Reading Foods Soon to Bear Sesame Allergen Labels

Last summer the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, to create an exception from the warning requirement for listed chemicals that are formed when food is cooked or heat processed. In essence the proposed rule would treat food products that contain acrylamide as a result of cooking or heating as “naturally occurring” thereby relieving manufacturers of the duty to warn consumers about the presence of acrylamide as long as the levels present are below the OEHHA proposed thresholds. Continue Reading New Modifications to OEHHA’s Proposed Rule Offer Additional Flexibility