May 31, 2016
The Food and Drug Administration (“FDA”) recently released final industry guidance on the new menu labeling requirements in accordance with 21 C.F.R. § 101.11, implemented to comply with a provision of the 2010 Affordable Care Act. The new menu labeling rules require chain restaurants to provide calorie information on the menu and provide, upon customer request, additional nutritional information for menu items. The FDA’s final guidance can be found here, and will help industry members comply with these new menu labeling rules, which the FDA will begin to enforce in May 2017. This blog post provides a summary of the menu labeling rules and the FDA’s industry guidance.
What businesses must comply?
The new menu labeling rules apply to restaurants or similar retail food establishments, such as a bakery, a convenience store selling foods intended for immediate consumption, or a concession stand, that are a part of a chain with 20 or more locations that do business under the same trade name and that offer substantially the same menu items for sale. Additionally, a restaurant or retail food establishment may voluntarily register to be subject to the menu labeling requirements.
What is required of those businesses?
Under the new menu labeling rules, these businesses will be required to include calorie information on menus for all standard menu items. Additionally, these businesses will be required to have written information available upon customer request, regarding nutritional information for standard menu items, including the amount of total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, dietary fiber, sugars, and protein. These requirements apply to standard menu items, and do not apply to daily specials, custom orders, alcoholic beverages on display that are not self-service, or temporary menu items that only appear on the menu for less than sixty days per calendar year.
Are alcoholic beverages included?
Yes, the new menu labeling rules apply to alcoholic beverages sold in a restaurant or similar retail food establishment that is required or has registered to comply with the menu labeling rules. The rules apply to all alcoholic beverages that are listed on the establishment’s menu, subject to the exceptions for daily specials, custom orders, alcoholic beverages on display that are not self-service, or temporary menu items that only appear on the menu for less than sixty days per calendar year. The exception for alcoholic beverages on display that are not self-service will be helpful for establishments preparing mixed drinks. If the liquor bottles are on display, and the drinks are not listed on the menu, the establishment will not be required to make available calorie or other nutritional information.
How can calorie and nutrient information for alcoholic beverage products be obtained?
An establishment must have a “reasonable basis” for determining the calorie and other nutritional information for standard menu items. Establishing a “reasonable basis” may include utilizing nutrient databases, published cookbooks that contain nutritional information for recipes in the cookbook, nutrition information determined by laboratory analyses, or any other means that is reasonable. The
U.S. Department of Agriculture (“USDA”) maintains a nutrient database, available here, which the FDA’s guidance refers to as reasonable basis for calorie and nutrient calculations.
How will alcoholic beverage producers be affected?
The new menu labeling regulations will impact all alcoholic beverage producers that sell products to chain establishments with 20 or more locations. Those establishments will likely request that the alcoholic beverage producer provide the calorie and nutritional information for its products sold at the establishment. As most alcoholic beverages are not subject to the FDA rules governing labeling and nutritional information, this law will mainly affect alcoholic beverage producers that do not currently maintain calorie or nutritional information regarding the beverages that they produce. Alcoholic beverage producers should check the USDA database referenced above to see whether their products match entries currently listed in the database, as the database includes entries for several common types of alcoholic beverages. Additionally, the Brewers Association has announced that it will be running laboratory analyses for approximately 100 beer styles over the next year, which the Brewers Association plans to submit for inclusion in the USDA database. Alternatively, producers could submit their products for laboratory analyses in order to obtain accurate nutritional information.
For more information about menu and product labeling requirements, contact one of the attorneys at Strike & Techel for a consultation.
April 20, 2016
Most of what consumers know about the alcoholic beverage products they buy comes from their interaction with the label, so it is important to get it right. The Alcohol and Tobacco Tax and Trade Bureau (TTB), which regulates the labeling of most beverage alcohol products, recently released their annual alcohol beverage sampling program results, highlighting the most common compliance issues with drinks labels in the marketplace. Every year, the TTB conducts a random survey of alcoholic beverage products available for sale to the public. They select a range of brands across the distilled spirits, wine and malt beverage categories, and crosscheck the information on the label against the beverage in the bottle (or can, or alternative packaging). In 2015, well over a third of the distilled spirits and malt beverages surveyed were non-compliant (at 62 out of 154, and 61 out of 158 respectively), and just under a quarter of the wines were non-compliant (at 34 out of 138).
Many of the products in the market were found to have labels that were different from the certificates of label approval (COLAs) that the TTB had issued for those products. The TTB has worked hard in the last few years to balance its limited resources against ever increasing numbers of COLA submissions, and has published a long list of allowable changes that can be made to approved COLAs. However, some changes still require a new COLA. Some of the information on the label can be changed or removed, the shape and color can be altered, and statements and graphics can be moved, but it is difficult to add anything new without getting a new COLA.
Leaving aside COLA compliance, however, far and away the biggest issue identified by the TTB was related to the alcoholic content claims of the products surveyed. Each category of alcoholic beverages has some room to maneuver with the stated alcohol content. In particular, wine and malt beverages have greater tolerances, because the regulations recognize that they are products which can and often do continue to evolve in the bottle. However, even with these permitted tolerances, over 20% of the samples had a stated alcoholic content that was non-compliant. A table wine between 7% and 14% alcohol by volume (ABV), is allowed to be up to 1.5% either above or below the stated alcoholic content on the label (provided the wine remains in the same tax class, below 14%). Wine with over 14% alcohol can still be up to 1% over or under the stated amount. Malt beverages can be up to 0.3% different from the labeled ABV, either higher or lower. In contrast to the permitted variations for wine and beer, distilled spirits are not allowed to contain any alcohol over the stated ABV. The regulations reflect TTB’s view that there is no reason why distilled spirits should not be able to be accurately proofed upon completion of production. Spirits are allowed a small 0.15% tolerance below the labeled amount, which reduction is only to recognize possible losses during bottling. The proofing and gauging of distilled spirits is key to the TTB’s principal aim of protecting the revenue, and is directly linked to how much tax is paid by the producer. The TTB offers a range of resources to help producers and bottlers with that process, and it is important to ensure that care is taken when your product is labeled.
For any questions related to labeling of beverage alcohol, contact one of the attorneys at Strike & Techel.
March 28, 2016
Just over a year ago, a class action was filed in California against a group of six winery defendants, producing 83 named wine brands, alleging that the wines contained unsafe levels of arsenic (Charles et al. vs. The Wine Group, Inc., et al, No. BC576061). The case triggered numerous articles about wine potentially being unsafe for consumption. On March 23, 2016, the Los Angeles Superior Court sustained a demurrer by the wineries defending the claim, and dismissed the action. The plaintiffs did not allege actual harm from exposure to arsenic; rather, they asserted that the non-disclosure of trace arsenic constituted a breach of California’s “Prop 65” labeling and consumer notification requirements. The court disagreed. All claims against the wineries were dismissed.
Due to its presence in soil and ground water, virtually all food and beverages contain trace elements of arsenic. There is no US regulation setting a maximum quantity of arsenic that may be present in either food or wine, although the US Environmental Protection Agency (EPA) does have a limit for inorganic arsenic in drinking water, at 0.01mg per liter. Other countries regulate arsenic levels in wine. For example, the European Union adopted a maximum of 0.2mg per liter, a standard set by the International Organization of Vine and Wine (OIV). In Canada, there is a maximum limit of 0.1mg/liter of wine. The Liquor Control Board of Ontario (LCBO), one of the world’s largest wine purchasers, conducts regular testing of wines from all over the world, including some of the wines identified in the lawsuit, and all were below the regulatory limit for arsenic.
Shortly after the original claim was filed in this matter, UC Davis published a very helpful factsheet about arsenic contamination, which can be found HERE for more information.
Around the time of the original California state case, nearly identical arsenic lawsuits were also filed in federal courts in Louisiana, Florida, and Puerto Rico, with a long list of additional defendants. Those lawsuits were each dismissed without prejudice, and are not affected by the decision in California. The California plaintiffs have said they plan to continue to pursue their case, indicating that an appeal may be forthcoming.
For more information about the case, or about California wine labeling generally, contact an attorney at Strike & Techel.
March 10, 2016
It’s no secret to people in the alcoholic beverage business that finding a unique trademark to register is becoming increasingly difficult. A decade ago there were far fewer producers of alcoholic beverages and most had just one or two trademarks. Today there are thousands more wineries, breweries and distilleries – as well as importers – and many of them have not just one or two trademarks, but a portfolio of brands. This proliferation of products is great for consumers but has made it progressively harder to come up with a trademark that isn’t already in use on another alcohol product.
Compounding the problem is the fact that the U.S. Patent & Trademark Office (“USPTO”) considers all alcohol beverages to be essentially the same goods (as we previously blogged about here). When the goods are very similar, the USPTO requires less similarity between the marks to find that confusion is likely. As a result, a trademark registration for XYZ LAGER would probably prevent someone else from registering XYZ SPIRITS COMPANY or XYZ VINEYARDS, or even less similar variations, such as XYZ FABULOUS WINES or CHEZ XYZ.
One possible solution for a trademark applicant that gets a Section 2(d) refusal from the USPTO based on a similar trademark is to enter into a “consent agreement” with the owner of the registered trademark. If two parties with similar trademarks agree between themselves that they don’t think confusion is likely, or can be mitigated (e.g., by ensuring that the parties use dissimilar labels and not make the same products), they can enter into a consent agreement. The USPTO has historically given such agreements great deference and will typically withdraw a refusal to register if the parties provide a consent agreement. But a recent precedential opinion of the Trademark Trial and Appeal Board (“TTAB”) reminds us that consent agreements are not always effective in securing a registration.
In In re Bay State Brewing Company, Inc., the USPTO was not swayed by a consent agreement between the applicant for TIME TRAVELER BLONDE and the registrant of TIME TRAVELER – both for beer – and did not withdraw the refusal to register TIME TRAVELER BLONDE. Serial No. 85826258 (Feb. 25, 2016) (precedential). The applicant appealed and the TTAB affirmed the refusal.
Why did the TTAB reject the consent agreement? They raised a few issues, notably that the agreement contained geographic restrictions for the use of applicant’s mark to avoid confusion (use limited to New England and New York only) but registrant was free to use its mark everywhere, so the marks would be used in overlapping areas, despite the limitation on applicant’s use. The TTAB also noted that a registration creates a presumption of nationwide trademark rights, but applicant’s rights were geographically limited by the consent agreement, so an unrestricted registration would be misleading to the trademark-searching public. The TTAB raised a few other issues related to restrictions on the parties’ use of their respective marks, but it appears that the USPTO and the TTAB were simply not comfortable with two registrations for “virtually identical marks on identical goods that are subject to impulse purchase by ordinary consumers in the same geographical area,” and no amount of trade dress restrictions would convince them that confusion could be avoided.
What does this mean for future consent agreements? The TTAB acknowledged that consent agreements still may be afforded great weight, and it is unlikely that we’ll see the USPTO begin to ignore consent agreements in Section 2(d) analyses. But the Bay State Brewing case reminds us that consent agreements are not a guarantee of registration and they should be carefully drafted to assure the USPTO that the parties can adequately avoid consumer confusion.
If you have questions about a trademark application or consent agreement, contact one of the attorneys at Strike & Techel.
February 17, 2016
Effective January 1, 2016, the California ABC Act contains a new section that loosens the restrictions suppliers face when mentioning a retailer in a social media post. Newly added Business and Professions Code § 23353.5 is aimed at clarifying how suppliers and retailers can co-sponsor nonprofit events. It was drafted, in part, as a response to the backlash that occurred after the ABC filed accusations against several wineries for advertising sponsorship of the “Save Mart Grape Escape” charity fundraising event in 2014. In that instance, several wineries posted or tweeted their support and sponsorship of the event on social media. The ABC reasoned that the suppliers were impermissibly advertising for Save Mart, a retailer, even though the event was held under a nonprofit permit issued to a bona fide nonprofit organization. The ABC alleged that by posting or tweeting about the event, the suppliers were giving a thing of value to the retailer, a practice that has long been considered a violation of California’s tied house restrictions.
California law has long permitted supplier licensees to sponsor nonprofit events if the nonprofit gets an event license, and the new law does not fundamentally change that. However, the new section clarifies that a supplier may advertise sponsorship or participation in such events even if a retailer is also a named sponsor of the event. Payments or other consideration to the retailer are still considered a thing of value, and are not allowed, but social media postings no longer fall under that broad category. There are restrictions on what the supplier is permitted to post about the retailer; posts cannot contain the retail price of alcoholic beverages and cannot promote or advertise for the retail licensee beyond mentioning sponsorship or participation in the event. The supplier can share a retailer’s advertisement for the event on social media, but the supplier is not permitted to pay or reimburse the retailer for any advertisement and cannot demand exclusivity of its products at the event. In short, the new section will allow exactly the type of supplier social media support that occurred in the Save Mart Grape Escape situation.
February 10, 2016
Several states restrict or ban happy hour promotions, and many people assume that these restrictions are a remnant of Prohibition. However, the practice of “happy hour”—gathering before dinner for cocktails, wine, or beer—did not actually arise until during Prohibition. Because the sale of alcohol was illegal, drinking was a surreptitious activity performed in the privacy of homes or speakeasies. Thus, enthusiastic imbibers would gather in private for a couple of drinks prior to heading out to a public establishment for dinner, where alcohol would not be served. Following the repeal of Prohibition, happy hour specials were popular at restaurants and bars across the nation. However, the 1980s brought an increased focus on preventing drunk driving, which spurred changes to alcohol laws. In 1984, President Reagan signed a bill encouraging the nationwide adoption of 21 as the minimum drinking age, and states that refused to raise the legal drinking age to 21 lost substantial federal highway funds. Also, during this time, several states and municipalities passed laws banning happy hours in an attempt to reduce excessive consumption and drunk driving.
Happy hour regulations can take many forms. Examples of happy hour promotion types that are frequently prohibited or restricted include:
Although many states have regulations prohibiting happy hour promotions, there have been some permissive changes in the past few years. In 2012, Kansas relaxed its laws regarding on-premises alcohol promotions, and drink specials that last only a portion of the day or apply only to a segment of the population are now permissible. In 2014, Virginia revised its happy hour laws slightly, allowing bars and restaurants to use the phrase “happy hour” via advertisements both on and off the licensed premises. In 2015, happy hour returned to Illinois, which now allows licensees to offer temporary drink specials for up to four hours per day, and not more than fifteen hours per week.
For advice regarding your state’s regulations governing happy hours and other alcohol promotions, contact one of the attorneys at Strike & Techel.
January 25, 2016
In 2015, the Trademark Trial and Appeal Board (“TTAB”) continued the trend of finding different categories of alcoholic beverages to be related goods for purposes of a Section 2(d) likelihood of confusion analysis. Although there is no per se rule that all alcoholic beverages are related goods, trademark examiners at the Patent and Trademark Office (“PTO”), the TTAB, and reviewing courts routinely find that beer, wine, spirits, and other alcoholic beverages are related goods. For the average consumer or business owner, the grouping of all alcoholic beverages together as related goods for trademark purposes makes little sense. As the TTAB has stated, “[w]hile it is clear that tequila and wine are both beverages that contain alcohol, not even an unsophisticated purchaser would mistakenly buy one expecting the other.” In re Proximo Spirits, Inc., Serial No. 85865962 (Mar. 16, 2015) (not precedential). However, the question is not whether the goods are similar or competitive, but rather the question is whether a consumer encountering the goods in the market “would mistakenly believe that they share or are affiliated with or sponsored by a common source.” Anheuser-Busch, LLC v. Innvopak Systems Pty Ltd., 115 U.S.P.Q.2d 1816 (TTAB 2015) (precedential).
Why does the TTAB frequently find, when the marks are similar, that consumers would believe alcoholic beverages of different types originate from a common source? One reason is that some manufacturers produce multiple types of alcoholic beverages and sell those beverages under the same mark. In In re Sugarlands Distilling Company, LLC, the TTAB cited five examples of wineries also engaged in distillation and the sale of spirits, as well as “internet evidence show[ing] that there are a number of combination wineries and distilleries,” and that evidence alone was sufficient for the TTAB to find that the goods, wine and spirits, were related. Serial No. 85818277 (Nov. 20, 2015) (not precedential); see also In re Sonoma Estate Vintners, LLC, Serial No. 85842056 (Jan. 9, 2015) (not precedential) (citing fifteen registrations showing that various entities registered a single mark for wine and beer). The TTAB also typically finds that alcoholic beverages are sold in the same channels of trade, such as liquor stores and restaurants, and thus that consumers will encounter multiple types of alcoholic beverages in the same stores. In re Brent Theyson, Serial No. 85663894 (Dec. 4, 2015) (not precedential); In re Millbrook Distillery, LLC, Serial Nos. 85924732 and 85954556 (Feb. 9, 2015) (not precedential). Further, the TTAB commonly finds that alcoholic beverages of all types can be found at lower price points, and thus that consumers may purchase alcohol “without exercising great care.” In re Millbrook Distillery, LLC, Serial Nos. 85924732 and 85954556; Anheuser-Busch, LLC, 115 U.S.P.Q.2d 1816. These factors all tend to lower the bar for a finding of likelihood of confusion by the PTO and TTAB.
See below for examples of cases involving the relatedness of alcoholic beverages that were considered by the TTAB in 2015:
Contrary to the above trend, the TTAB reversed a refusal to register REUBEN’S BREWS (and design) in Class 32 for beer, despite the prior registration of RUBENS (and design) in Class 33 for wine. In re Reubens Brews LLC, Serial No. 86066711 (Oct. 27, 2015) (not precedential). The TTAB found the marks to be different in appearance, meaning, and commercial impression, although they were similar in sound. Considering evidence of manufacturers producing both beer and wine, an overlap in trade channels, and similar price points, the TTAB conceded that the “record establishes that there is some degree of relationship between beer and wine.” However, the TTAB acknowledged that the PTO “has in the recent past taken inconsistent positions when it comes to likelihood of confusion between marks for beer and wine,” and cited eighteen examples of similar or identical marks registered to different owners in beer and wine. The TTAB ultimately found in favor of the applicant, and reversed the refusal to register. However, the TTAB stressed that the finding was based on the “overall differences between the marks in their entireties.”
Notwithstanding the TTAB’s reversal in the REUBEN’S BREWS case, it would be premature to conclude that the PTO or the TTAB will increasingly recognize the potential differences between types of alcohol products, so it would be wise to consider trademarks in use on beverages of all types when evaluating a trademark for use with an alcoholic beverage product.
For specific trademark guidance, contact one of the attorneys at Strike & Techel.
January 18, 2016
On December 18, 2015, President Obama signed into law the Protecting Americans from Tax Hikes Act of 2015 (“PATH Act”) (LINK). The PATH Act provides for changes to the definition of “hard cider,” which will bring valuable tax rate changes for some makers of cider and perry. Currently, “hard cider” is defined as a “still wine derived primarily from apples or apple concentrate and water, containing no other fruit product, and containing at least one-half of 1 percent and less than 7 percent alcohol by volume.” 26 U.S.C. § 5041(b)(6). Because the current definition of hard cider states that the wine must be still, the definition excludes ciders with carbonation in excess of 0.392 grams of carbon dioxide per 100 milliliters. 26 U.S.C. § 5041(a). The current definition also excludes perry, which is wine made from pears. Finally, the alcohol content of many wines made from cider apples ranges from approximately 5% to 8.5% alcohol by volume, and cider products with more than 7% alcohol do not meet the current hard cider definition.
Beverages that meet the definition of hard cider are taxed at the rate of 22.6 cents per gallon. 26 U.S.C. § 5041(b)(6). This rate is much more favorable than the $1.07 per gallon tax rate on still table wines, as well as the $3.40 per gallon tax rate on sparkling wines, and the $3.30 per gallon tax on artificially carbonated wines. 26 U.S.C. § 5041(b). Passage of the PATH Act will be welcome news to the cider and perry producers who have advocated for an expansion of the definition of hard cider in order to get the lower tax rate. Beginning on January 1, 2017, the definition of hard cider will be a wine that meets the following parameters:
For more information on cider and perry, see our July 29, 2015 blog post “Comparing Apples and Pears” (LINK), and contact one of the attorneys at Strike & Techel for further guidance.
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