New TTB Cider FAQ: TTB Clarifies Labeling and Other Regs for Cider Industry

There’s a new TTB Cider FAQ out. We’ve touched on Washington Cider Law in the past, but the feds play an important role in it too. Just today, TTB has provided helpful insight to the growing craft cider industry. Here’s a link to the new TTB Cider FAQ, with six bullet points from us below covering more notable stuff, especially for those comparing regs on the cider side with things on the beer side. Different worlds, but we help with both sides at Reiser Legal.

1. Cider is a wine, we know that. It’s not a malt beverage under the law.

2. From TTB’s labeling standpoint, to call a product just “cider” it has to come from fermented apples and optionally contain added sugar, water, or alcohol. Anything else, it’s not just “cider.” Fortunately, when you submit your formula, TTB will provide a suggested statement of composition to help you, and you can always designate a fanciful name on the label, so long as it’s not misleading.

3. If your cider contains less than 7% ABV, you do not need a COLA. This stems back from the TTB/FDA regulatory authority divide we’ve discussed in the past. If your cider is 7% to 24% ABV, you need that COLA to ship in interstate commerce, as you’re subject to TTB authority. Notably, Washington is going to want that COLA to get your project on the shelves here. Either way, even if you don’t need to obtain a COLA, if the cider leaves the premises, it still has to comply with certain basic labeling requirements.

4. Because cider is a wine, 7%+ ABV cider is subject to TTB’s standards of fill. That means 12oz packages (like the cans we know and love to see on the shelves) are no good for cider at that ABV. Below 7%, it’s all good. Notably also, as long as you’re shipping wine in containers above 18L (4.75G), you don’t have to comply with TTB’s standards of fill. Here are some standards of fill, which feel pretty arbitrary but it’s a reg so what do you expect:

  • 3 liters
  • 1.5 liters
  • 1 liter
  • 750 mL
  • 500 mL
  • 375 mL
  • 187 mL
  • 100 mL
  • 50 mL (just a sip at 1.6907!)

5. If you’re only making cider below 7% ABV, you don’t need a basic TTB permit. Keep in mind, you’re still subject to applicable federal authority, and your local liquor board (in Washington, the Liquor Control Board) more than likely has its own sets of permitting requirements and onerous regs.

6. If your cider has CO2 in it (technically about .392g CO2/100mL, be careful. If CO2 is coming from secondary fermentation in a closed vessel (like a bottle), it’s considered “sparkling.” But, if you’re injecting CO2, it’s artificially carbonated so it has to be labeled as such. Note that sparkling/carbonated wines are taxed at higher rates. Speaking of tax, there are all kinds of nuances with respect to how you’d be going about your cider business.

The takeaway on the TTB Cider FAQ:

Regulations are really confusing, inconsistent among industries, and you might be subject to a completely different set of regulations depending on how much alcohol is in your project. For anyone thinking about starting a cidery in Washington State, we’re happy to help you wade through these tricky regulations. We’ll post further resources for cideries on the blog soon.


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Craft Beer Musings from Seattle: On Elysian, that Budweiser Super Bowl Ad, and our Dear Seahawks

So, I’m a Seattle-based craft brewery attorney. Between the announcement that Anheuser-Busch InBev purchased Seattle-based Elysian Brewing Company last week, that now-infamous Budweiser Super Bowl commercial poking fun at craft beer, and then that bummer of a Seahawks loss, it’s all felt a little personal lately. So, here I am with some thoughts and observations about it all. I know all three of these recent events blew up and made the headlines, spawning endless clever Twitter posts, Reddit memes, and thoughtful articles across the Interwebs from people paid to do this stuff, with more time to pore over it all than I do. So, if I’m rehashing the hash, come check out the Brewery Law Blog next time. For the rest of you, let’s dig in a bit.

Here’s what we know, and then some reflections, about recent headlines.

WHAT WE KNOW about the Elysian purchase, that Budweiser Super Bowl ad, and those Seahawks:

1. Last week, Anheuser-Busch InBev’s purchase of Seattle-based brewery Elysian Brewing Company was made public knowledge.

2. The lone dissenter from Elysian in the purchase was owner Dick Cantwell, a champion of the craft brewing scene and, at least until now, very active with the Brewers Association.

3. Elysian, under the influence of Dick Cantwell, has produced a number of impressive and locally loved beers. Among the brews have been extremely creative pumpkin beers each fall. In fact, Elysian has been holding the Great Pumpkin Beer Fest for the last decade. Cantwell was featured in an American Homebrewers Association article giving tips on brewing with pumpkin beer. Man knows his pumpkin stuff.

4. As I found out this past fall over a taproom pour, Dick Cantwell gave fellow Seattle brewery Schooner Exact a hard time because Head Brewer Matt McClung hadn’t produced a pumpkin beer. In response to the heckling, Schooner crafted a batch of barrel-aged pumpkin goodness and named it “Whiskey Dick Cantwell” in a tongue-in-cheek nod to Cantwell.

5. Lots of people in the Seattle area and beyond were upset to hear about A-B’s purchase of Elysian. Fun fact, as you’ve probably read about so far—Elysian teamed up with Seattle’s indie record label Sub Pop to produce a beer with the tag line “Corporate Beer Still Sucks.” What you may not know, and I only put together anecdotally, is that the Sub Pop deal and that beer are probably dead because of it all. No surprise there, but it still makes for a fun story to relate in the wake of all this: At the Washington Beer Commission’s awesome Belgianfest in Seattle on Saturday, someone in my tasting group happened to be wearing a Sub Pop sweatshirt, and an Elysian pourer made a bummed comment about Sub Pop dropping them. Whatever’s underneath that comment, and whatever happened with Sub Pop, people are upset. People on seemingly both sides, even. They’re talking. We know that.

6. During the exorbitantly expensive advertising slots during the Super Bowl, Budweiser ran this ad. It attempted to frame Budweiser as proudly a “Macro” brand while poking fun at Microbrews.

7. In the commercial, Budweiser specifically made fun of the creativity and unusual ingredients in craft beers…making fun of a hypothetical “Pumpkin Peach” ale. The line, so you have it, was this: “Let them sip their pumpkin peach ale, we’ll be brewing us some golden suds.”

8. Sadly, the ad team didn’t do their research (or did?) because, as everyone on the Internet and I quickly Googled during the bowl and confirmed what we suspected. Yep, Elysian had produced a Pumpkin Peach ale, just this year, called Gourdgia On My Mind. (As you’d guess, Cantwell isn’t too happy about snarky tone of the ad.)

9. Wow.

10. The Seahawks lost.

REFLECTIONS from this Seattle Beer Lawyer, who feels a little extra connection, if only emotional, to all the goings-on:

1. Succession Planning. I really wasn’t too bugged about the Elysian purchase. If anything, it highlights the need for breweries-in-planning and those seeing some early success to think about the future. What’s your end game? Do you want to sell, if you can? Selling doesn’t necessarily mean selling out, either.

2. Breweries are Amazing Marketers. Okay, CRAFT breweries are amazing marketers. I can’t think of another industry where consumers get this riled up over David and Goliath, can you? Example. If a local artist stopped selling their screen-printed made-in-the-USA t-shirts and sold their designs to Target, we’d probably be happy for the local artist. It wouldn’t make headlines, at least not like this. If we cared that much about purely local t-shirts, we’d go find another one. On the other hand, craft breweries have created a tremendous sense of “us” against a very giant “them.” We’ve pulled this off, even despite a technical definition that makes many “craft” breweries quite huge. Extremely huge. Rapidly expanding nationally and internationally huge. Nevertheless, it seems to me that very few beer geeks and “craft” aficionados apply this same craft mentality to all aspects of life. I’m wearing Adidas sneakers and some Levis as I type this out. Maybe some little guys in other industries have something to learn from breweries as well as the nice work farmers markets and eateries have done with this whole “go local” push. Maybe food/drink, because they’re closer to each of us, are likewise easier to feel passionately about. Whatever the case, it’s interesting.

3. Budweiser is clearly aware of its loss of marketshare to craft brands. Of course, we all knew that already, what with all the layoffs. And the statistics.

4. Budweiser’s commercial may have worked. Yep. Maybe it was genius, apart from the whole Elysian gaffe. After all, anyone who was bugged by the commercial or took the time to write about it, present company included, isn’t buying Bud. Budweiser simply pointed to the divide that all of us beer geeks are already well aware of. If you were a loyal Bud drinker, or skeptical of craft beer, maybe this would actually stick you firmly on the other side, and arm you with some tools to make fun of the movement. For the rest of us, let’s get real. If you reacted to the commercial, or went to Twitter during the Super Bowl, the last time you probably had a Bud was in your old college bar or when your uncle pulled one from the fridge and it was Bud or no beer at that family gathering. (In that case, I’d choose Bud, every time. And that’s okay.)

5. Craft breweries need to keep up the marketing. It’s not time to pull off the gas pedal. As big guys snap up some great brands, a number of those brands will remain successful as they head into different marketplaces. But, maybe that’s a good thing. For me, it was the omnipresent and ad-dollars-fueled Blue Moon that opened my mind to Indiana University’s local Upland Wheat. I remember visiting the MillerCoors plant in Golden, CO in seventh grade, and my dad bought a Blue Moon t-shirt. It felt incredibly hip compared to Bud. Remember when MillerCoors was the little guy, when Leinenkugel was a good option out of not many? It was also stuff like Killian’s that helped a lot of people find Fat Tire and, from Fat Tire…beyond. I’m all for better beer out there, and craft breweries will just have to keep promoting their awesomeness, so as tastebuds evolve, beer-geeks-in-training find them eventually. For those of us who have already converted, there’s no turning back.

6. The Seahawks’ decision to pass wasn’t as bad as I thought at first. My brother helped me feel better about it, by pointing out the absurd statistics that favored passing instead of giving the ball to Beast Mode and running it on in. It still didn’t make it hurt much less. But, maybe this whole Anheuser-Busch buyout direction and their both-sides-of-mouth approach really isn’t the worst thing in the world either. Still, I felt the zing, too.

Whatever the case and whatever happens with the above, I propose a toast:

To craft beer fans everywhere, and on behalf of the would-be craft beer lovers out there that still represent A-B’s dominant share of the market—let’s keep rising up. Because, however you feel about recent events, I know I sure am glad everyone’s talking. What a good sign for craft beer.

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