What Beers Need TTB Formula Approval?

When does your carefully craft brew require a TTB formula approval? It's not as straightforward as it seems.
When does your carefully crafted brew require a TTB formula approval? It’s not as straightforward as you might hope. Read on for important background on TTB formula approval requirements.

Government authorities are great at drawing confusing lines. One example is understanding what beers need a TTB formula approval. (Note that TTB, or the Alcohol and Tobacco Tax and Trade Bureau, is the primary federal regulatory authority over alcoholic beverages and producers.) Before getting to the question of which beers require TTB formula approvals, it helps to cover some background material, and the necessary rigmarole it takes to get one. What are they, what beers need them, when do you apply, how long does it take? Read on and we’ll roll through it.

What is a TTB formula approval?

When brewing certain kinds of beer with certain ingredients and processes, TTB requires that the agency first approve your formula (your recipe / process essentially) before it will consider your beer for a Certificate of Label Approval (COLA). That process is commonly referred to as a TTB formula approval. This is required for a range of beers, as we’ll cover soon.

When do I seek TTB formula approval?

The time to seek formula approval is when you’re planning to package and distribute a product across state lines. That’s when you’d need to get something else, called a Certificate of Label Approval (which authorizes you to move that beer across state lines). The formula approval is a prerequisite to the COLA for beers that need it. Here’s another scenario that’s important to know. If your state requires a COLA before packaging and selling your product even within the state, then you’ll need to go through the formula-approval process first. (Submitting your TTB COLA label approvals is technically required by the Washington State Liquor Control Board, for example, so you’d need your (1) TTB formula approval and then (2) TTB COLA label approval, before you have authority to sell packaged product in the state).

How long does it take to get a TTB formula approval?

TTB does a great job, but it’s not as fast as getting your COLA. You can view average TTB formula approval processing times at this website. At the time of writing, it’s taking TTB about 53 days (so almost two months) to issues its formula approvals. In part, TTB’s backlog is due to the increase in number of producers and, thereby, the beers hitting the market and crossing state lines. Sneak preview, though…Based on statements from TTB correspondents at the Craft Brewers Conference this year, they’d like to see the number of required formula approvals go down, and may be easing requirements even more, letting more beers through the gate without requiring approvals first. We’ll touch on that in a second. In any event, you will want to budget this time when planning to release any beer to market that requires a formula approval. And then you’ll want to keep in mind that, after the formula approval, it’s going to take some time to get your COLA as well. (Current TTB COLA approval wait times here. Battle Martin does a fantastic job getting through these. Yes, it’s one guy at TTB who does every beer label, and he’s refreshingly also most awesome to hear speak and to deal with.)

Which beers require a TTB formula approval?

Well, let’s be glad not all of them do. But, the line drawing here doesn’t make the most sense. TTB requires formula approval for any beer that is made using nontraditional processes. If you’re brewing up a traditional recipe, this doesn’t need to be on your radar. Water, malt, hops, and yeast? No worries. It does, however, come into play when you start using adjuncts or creative processes.

As a general rule, the kinds of beer recipes listed below require a TTB formula approval. However, there are very important exceptions to this rule which I’ll cover below.

To which flavors or other nonbeverage ingredients (other than hops extract) containing alcohol will be added;
To which coloring or natural or artificial flavors will be added;
To which fruit, fruit juice, fruit concentrate, herbs, spices, honey, maple syrup, or other food materials will be added; or
That is designated as saké, including flavored saké and sparkling saké.

Which beers are exempt from the general TTB formula approval rule?

Here’s a list of the exempt ingredients below (thanks to a ruling in 2014 relaxing the standards). This list came from urging by the Brewers Association, wanting to relax the onerous approval requirements for beer ingredients and processes that really were traditional. As you peruse the list, you’ll see that certain fruit additions are okay…but not others, at least right now. For example, coconut doesn’t make the cut. So if you’re using coconut in any beer, you need a TTB formula approval. Moreover, a multitude of spices got the green light, but if you’re using something creative like lemongrass in your wheat, it’s not going to pass muster. Last, and fortunately, ingredients like brown sugar, chocolate, coffee beans and grounds, honey, lactose, maple syrup, and the like are all okay. But, notably, if you’re brewing a batch of coffee and then using that brewed coffee in your beer process, that is not okay. Just the beans or grounds. Hmm.

Fruits (whole fruits, fruit juices, fruit puree or fruit concentrate)
apples
apricots
blackberries
blueberries
cherries
cranberries
juniper berries
lemons
oranges
peaches
pumpkins
raspberries
strawberries

Spices
allspice
anise
pepper/peppercorns
cardamom
cinnamon
clove
cocoa (powder or nibs)
coriander
ginger
nutmeg
orange or lemon peel or zest
star anise
vanilla (whole bean)

Other Exempted Ingredients
brown sugar*
candy (candi) sugar*
chili peppers
chocolate**
coffee (coffee beans or coffee grounds)
honey
maple sugar/syrup *
molasses/blackstrap molasses *
lactose

The below processes are also exempt. As you review the list, keep in mind that you can use woodchips (remember, though, you can’t say it’s a barrel-aged beer then or say on its label that it has barrel flavor, that gets to labeling issues), but you can’t soak those woodchips in alcohol.

  • Aging beer in plain barrels or with plain woodchips, spirals or staves made of any type of wood.
  • Aging beer in barrels, containing no discernible quantity of wine or distilled spirits, that were previously used in the production or storage of wine or distilled spirits.
  • Aging beer with woodchips, spirals or staves derived from barrels, containing no discernible quantity of wine or distilled spirits, that were previously used in the production or storage of wine or distilled spirits, or with woodchips, containing no discernible quantity of wine or distilled spirits, that were previously used in the aging of wine or distilled spirits.

In Conclusion, TTB Formula Approval: Moving Forward

Ultimately, based on comments from TTB authorities who attended the 2015 Craft Brewers Conference in Portland, TTB seems to be revisiting further ingredients / processes to include on the list. We’re hoping coconut and a multitude of other now-traditional ingredients make the cut. We’ll include them in a post whenever we get word. But, for now, as you make plans to expand into other territories, keep in mind that the COLA isn’t the first step for many of your creative beers. Instead, it’s TTB formula approval, then the important step of TTB COLA approval. Forgetting this, or doing them out of order, can add significant delays to your beer’s release time. If you have questions or concerns about your upcoming COLA or TTB formula approval needs, Doug and I can help, no matter where in the U.S. your brewery is located. Feel free to send us a note.

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Washington Brewery Guest Taps – Applying the “25%” Rule

Are guest taps legal at Washington breweries? Indeed, they are, but subject to an important restriction.
Are guest taps legal at Washington breweries? Indeed, they are, but subject to an important restriction.

Are guest taps legal at Washington breweries? If you’ve been on a brewery crawl here in the evergreen state, you know the answer has to be yes. But, are there any restrictions on what a Washington brewery can pour at its taproom? Let’s dig in.

In Washington, we’re lucky to have a fairly de-regulated market. Just look at some of the Southern states, for example (where in Alabama homebrewing only became legal in 2013, sheesh). However, it’s not a free-for-all as far as guest taps are concerned.

In Washington, the on-point law can be found in RCW 66.24.244. It provides that any properly licensed microbrewery can sell beer produced by another microbrewery (those on the craft side) or domestic brewery (the big guys), but with one major caveat. The guest taps cannot exceed “twenty-five percent of the microbrewery’s on-tap offering of its own brands.” That might seem straightforward, but let’s break it down.

First, the excerpt one more time:

“Any microbrewery licensed under this section may also sell beer produced by another microbrewery or a domestic brewery for on and off-premises consumption from its premises as long as the other breweries’ brands do not exceed twenty-five percent of the microbrewery’s on-tap offering of its own brands.”

Understanding the Washington Brewery 25% Guest Tap Rule:

  1. Under the microbrewery license, standing alone, a brewery can only have beer guest taps. Not wine, not cider, not mead. The rule only applies to beer.
  2. The 25% rule is clear, but its application may not be. It’s easiest to break it down by using a number. You might read the 25% rule and think it’s simple. Say, I have 20 taps. A quick read may suggest to you that 25% of those can be guest taps. So, then, fifteen of my own beers and then five guest taps—75%/25%, right? It’s actually a little different. What the law says is that a microbrewery can’t exceed 25% of the brewery’s own brands. So, if you have 20 of your own beers on tap, then you could have an additional 25% allocated to guest taps. That’d be 25 total taps. 20 of your own beers, 5 guest taps. Important distinction. So, if you only had 10 total taps, no more than two could be guest taps.
  3. You probably caught it in the read through, but one last note. The law permits on-premise sales and off-premise sales, too. So, the law gives Washington breweries the green light to fill growlers from guest taps as well.

Ultimately, I love a good guest tap. And, I love that this industry is so supportive of one another that guest taps are a mainstay. The Revised Code of Washington, as applied by the Washington Liquor Control Board, ensures that Washington brewery guest taps are alive and well throughout the state. However, the 25% rule prevents a Washington brewery from, say, operating a full-fledged beer bar, while only dabbling in its own on-tap offerings. (Which, for me, is a bit of a bummer. I’d love to see a nano get rolling as a great beer destination—a fun atmosphere, an awesomely curated selection—then transition over into a bit more brewing. But, alas, that’s not the law.)

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Is Your Distributable Beer Brand Trademarkable?

Your beverage brand is racy, but it passes label muster thanks to the First Amendment. Can it be denied a trademark?

Can this Happy Bitch get a trademark? You bet, although the First Amendment's protections don't extend to every trademark application. Read on!
Can this Happy Bitch get a trademark? USPTO has said yes! Although the First Amendment’s protections don’t per se extend to every conceivable brand direction you may want to trademark.

Credit goes to my beer trademark law chum Alex Christian over at Davis Brown in Iowa for pointing out this nuance, which is worthy of a post of its own today. In the past, I’ve written about the issue of having a potentially trademarkable beer name or logo, yet not being able to distribute that beer because of Certificate of Label Approval (COLA) issues. That is, the Alcohol and Tobacco Tax and Trade Bureau (TTB) may control a brewery’s speech on labels when, for example, the label is misleading, touts the intoxicating effects of the beverage, or would be appealing to kids. More on that here. Essentially, in that scenario, a brewery might have an otherwise trademarkable piece of branding material, but be unable to obtain a COLA to put that label or beer name into interstate commerce.

Here’s a different scenario. Imagine your beer name itself is distributable. It isn’t misleading. It’s not touting the effects of alcohol. It’s not appealing to kids. Now, if the label has subjectively “racy” content, we know the First Amendment is going to kick in and protect that brewery’s speech on the label. See my post last week on the case of Flying Dog and its Raging Bitch beer label, which caused a bit of a stir with Michigan’s Liquor Control Commission, which had initially (and improperly) rejected the label, contrary to Flying Dog Brewery’s First Amendment rights.

Could it be that the reverse is also true? That is, can you have a distributable beer label or brand that is not trademarkable? Indeed. The United States Patent and Trademark Office (USPTO) operates under the framework of the Lanham Act. Bear in mind that within the Lanham Act, USPTO is to refuse a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter . . . .” There are a few other grounds for refusal, outlined in 15 U.S.C. § 1052. In fact, readers might be aware of the ongoing matter involving the registrability of “Redskins.”

So, you might say, wait a minute. If the First Amendment protects the government from restricting labels with subjectively scandalous content, then how can USPTO refuse registrations on this sort of ground?  You might wonder, can USPTO, the Trademark Trial and Appeal Board (TTAB), and courts applying the law really do this, without affronting First Amendment rights? So far, they can. The distinction is that, by not granting a federal trademark, the government has not prevented the party’s use of the mark. You can speak on. The use would just not be granted the presumptions and protections connected with a federal trademark. A great case on point here was the matter of 1-800-JACK-OFF, a trademark sought for services it doesn’t take much imagination to determine.

So, in sum, some trademarkable beer names are not distributable. In the reverse, some distributable beer names are trademarkable. In the case of Flying Dog Brewery, however, they do have a trademark for their “Raging Bitch” brand of brew. In fact, I was surprised to see just how crowded the field of “Bitch” marks is on alcohol beverages. Among them, we have the pure and simple “BITCH” mark, as well as a battery of marks from different owners, with most of these bitches seeming to favor wine brands. You’ll find “HAPPY BITCH” but also “CRAZY BITCH”, “NASTY BITCH”, the nautical-themed “BEACH BITCH” and then “JEALOUS BITCH”, though that “RICH BITCH” is no longer protected.

At any rate, when developing a standout product for a brewery or beverage business, it can be fun to push the boundaries with creative ingredients and processes. To match the brew’s personality or create some pop on a crowded taplist or retail shelf, it can also be tempting to push the boundaries with the brand material itself. The First Amendment does kick in to protect a brewery’s speech on its labels, allowing all kinds of vulgar things to potentially come to market. Thanks, Bill of Rights! Nevertheless, so far, to develop a brand under the protections of a federal trademark, you’ll have to keep it a bit cleaner. In fairness, although it’s still a subjective call at the end of the day, the powers that be who review trademarks take a pretty measured approach in determining whether a mark warrants refusal for these reasons under the Lanham Act. Still, for any brand owner or marketer, it’s important to know the line exists.

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Raging Bitch Lawsuit: Liquor Control Commissioners “In Heat” Over Flying Dog Label Rejection

Michigan Liquor Control Commissioners "in heat" over recent Sixth Circuit decision regarding a 2009 rejection of this Flying Dog Brewery label.
Liquor Control Commissioners “in heat” over recent Sixth Circuit decision regarding a 2009 rejection of this Flying Dog Brewery label. Click for full size.

Does the First Amendment extend to your brewery’s beer labels? You bet. Congratulations goes to Maryland’s Flying Dog Brewery for a big win this month. Unlike the brewery trademark disputes we’re used to seeing hit headlines, this brewery lawsuit involves Flying Dog’s rights to express itself on its labels. Like many cases tend to do, this one has been going on for quite some time. In fact, we reported on it here back in 2011. The background is that in 2009, Flying Dog sought to register its “Raging Bitch” beer label with the Michigan Liquor Control Commission. You can click the picture for a full-size version of the label. The MLCC did not approve the label, claiming it was offensive. In particular, it seems the MLCC took objection to language on the label that it found would be “detrimental to the health, safety, or welfare of the general public.”

The procedure gets a little messy. But, hang with me, because the outcome is important. When the MLCC denied the label, and Flying Dog lost its administrative appeal, Flying Dog filed a lawsuit pursuant to a federal statute, alleging the individuals at the MLCC had violated the brewery’s Freedom of Speech rights protected by the First Amendment. It’s not an unusual kind of lawsuit, except perhaps for the beer world. It’s the same kind of lawsuit involving government action that you’d see in headlines where a private citizen alleges that the police used excessive force. Constitutional violation. Keep in mind, however, that government actors can have different degrees of immunity from these kinds of lawsuits. It’s why you don’t see judges being sued every time they make a decision that impacts an individual’s rights. It’s prudent. We wouldn’t want a judge to be worried about being sued, for example, when trying to make the right, albeit unpopular, decision in a case. More on that soon.

At any rate, the MLCC Commissioners alleged that they had immunity, and put forth a couple of different theories, one being that their actions were quasi-judicial. The federal district court agreed, granting the Commissioners partial summary judgment. According to the court, it was the first time a court in the Sixth Circuit had decided whether members of a state administrative body who had the authority to make licensing decisions are entitled to quasi-judicial immunity. The district court thought so.

Flying Dog Brewery appealed the summary judgment ruling, and so the case went to the Sixth Circuit Court of Appeals. In reviewing the case, the Sixth Circuit observed that to determine whether an individual is entitled to quasi-judicial immunity, the court would consider factors like the nature of the government official’s functions, and how being exposed to various forms of liability for those decisions would affect the appropriate exercise of those functions. Here are some factors that are characteristic of the judicial process:

  • the need to assure that the individual can perform his functions without harassment or intimidation;
  • the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct;
  • insulation from political influence;
  • the importance of precedent;
  • the adversary nature of the process; and
  • the correctability of error on appeal.

Through a measured analysis, the Sixth Circuit found that the factors divided evenly both for and against a grant of quasi-judicial immunity. For those interested, the opinion is here, and it’s worth a read. The court decided to call the close question in favor of Flying Dog, whose constitutional rights were at stake. No quasi-judicial immunity.

The court next analyzed whether the Commissioners had a different type of qualified immunity. That is, the MLCC’s commissioners would be protected against a lawsuit, only if the brewery’s freedom of speech right was clearly established, in light of the context of the case. A right is clearly established if a reasonable official would understand that what he or she was doing would violate the right.

The Commissioners urged that the right was not clearly established. It is true that “commercial speech” is afforded less protection than, say, the content of your favorite film. When evaluating whether commercial speech falls within the ambit of the First Amendment, courts apply what’s known as the Central Hudson test. First, the speech must concern lawful activity and not be misleading. Next, the asserted government interest (here, the health, safety, and welfare of the people of Michigan) must be substantial. If both answers are yes, the court asks whether the regulation directly advances the governmental interest asserted, and whether the regulation is more extensive than it needs to be to serve that interest.

The Sixth Circuit reached back to a notable case the Supreme Court took on called Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). That case involved the federal government’s regulation on alcohol content on beer labels. Yes, a couple of decades ago, federal statute 27 U.S.C. § 205(e) prohibited brewers from putting any ABV information on their labels, unless state law required it. (The concern was that brewers would get into “strength” wars.) The Supreme Court applied commercial speech principles and found the whole regulatory scheme irrational, especially because the same statute required alcohol content on wine and spirits labels. The following year, the Supreme Court decided yet another brew-centric case. Rhode Island had banned ads that displayed accurate information about the retail prices of alcohol. The Court determined that Rhode Island’s ban was not justified by the Twenty-first Amendment, and that the Twenty-first Amendment does not “diminish the force” of a battery of constitutional protections, including the First Amendment.

This beer label was at issue in Bad Frog Brewing Co. v. New York State Liquor Authority.
This beer label was at issue in Bad Frog Brewing Co. v. New York State Liquor Authority.

The Commissioners pointed to a case in the Second Circuit, where state liquor commissioners had been granted qualified immunity when they banned a vulgar beer label (the aptly named Bad Frog Brewery had a label with a frog giving the finger), and where on appeal the Second Circuit determined that the commissioners reasonably believed they were entitled to reject the application. The Sixth Circuit found that, if anything, that case put all state liquor authorities on notice that banning a beer label for vulgarity does violate the First Amendment. Thus, a reasonable official would understand that his or her actions would violate the right. No qualified immunity.

So, the outcome of the Raging Bitch case. It’s not a complete win, it’s a win of a case within a case. That is, the Sixth Circuit determined that the Commissioners were not entitled to any form of immunity. However, because the district court had never reached the issue of whether the MLCC commissioners violated Flying Dog’s clearly established First Amendment rights, the case gets kicked back down to the district court, where we can only imagine the commissioners are hoping to settle. This is especially so because a dissenting judge on the Sixth Circuit thought that the factual record was developed enough that Flying Dog should be entitled to summary judgment in its favor as a matter of law! It’s worth noting here that the federal statute permitting Flying Dog’s claim has a fee-shifting provision, whereby a court may allow Flying Dog Brewery to recover its attorneys’ fees if it prevails. Those fees would be in addition to any judgment Flying Dog received for its constitutional injury. Keeping in mind that this dispute has been alive since 2009, you can do the math.

If you made it this far, you’re either a lawyer or a truly brave and persevering soul. Ultimately, I’ve gotten so deep into this case today because (1) I love a good Con Law session and (2) because there’s no doubt now that, thanks to one Ragin’ Bitch, state authorities are firmly on notice that a brewery’s beer labels have significant constitutional protections. I’ll raise a beer to that.

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Washington Brewery Law Resources

When opening a brewery, all the laws and regulations can feel daunting. Here's a short list of key Washington Brewery Law Resources to help kickstart your understanding.
When opening a brewery, all the laws and regulations can feel daunting. Here’s a short list of key Washington Brewery Law Resources to help kickstart your understanding.

Opening and running a brewery is complicated, and Washington Brewery Law Resources aren’t necessarily all neatly gathered in one place. It can be hard to know where to look when your curiosity encourages you to start poking around. Today, I’ll do my best to help you start your research on how breweries in Washington State are regulated. There’s a bevy of laws/code/regs out there, that’s for sure. Here are some jumping off points for your legal excursions.

Keep in mind, these sources aren’t exactly written with readability as a primary objective. Important nuances pop up in all different places. That’s what we’re here for, if you’re ever not sure about something. Indeed, it’s through the code, and our understanding of it, that we can help answer all kinds of questions on the fly, such as: (1) Can my Washington brewery deliver beer to customers in Seattle?; (2) If I’m only selling beer within Washington’s borders, do I still need a Certificate of Label Approval?; (3) May those under the age of twenty-one come into my brewery without us having food service? The list of fun questions that vary from state to state goes on.

For anyone interested in checking out primary Washington Brewery Law Resources, here are some links along with my notes to help you navigate them.

Washington Brewery Law Resources – State Brewery Law

Revised Code of Washington. This is the law that the state legislature creates and revises. Primarily, you’re looking at the content in RCW 66, although keep in mind that other provisions relating to your business, potential distribution agreements, etc. all fall in other places in the code.

Washington Administrative Code. This is where administrative agencies put their regulations. In Washington, the primary administrative authority is the Washington State Liquor Control Board. They were created by the legislature by way of RCW 66 and given authority to do certain things relating to booze in Washington State. Any regulations they promulgate become part of the Washington Administrative Code. Unfortunately, this means that there are often provisions in RCW that address some of your questions, and then provisions in WAC that address other questions. It just depends on whether the legislature contemplated something or it’s LCB creating regulations by virtue of its authority.

Between those two, that’s the heart of Washington brewery law. Keep in mind there are some sanitation requirements set forth by the Washington State Department of Agriculture, and your compliance therewith is a part of maintaining your LCB microbrewery license. Further, there are some places where the County and your Municipality step in, particularly with respect to health codes and building codes.

Washington Brewery Law Resources – Federal Brewery Law

Of course, we all know that state and local government isn’t the final authority on breweries in Washington. Indeed, Uncle Sam, through the Alcohol and Tobacco Tax and Trade Bureau (TTB), has a say on a number of matters. When it comes to TTB, you’ve got to jump to the Code of Federal Regulations (CFR) to see all the regulations they’ve promulgated, and Title 27 is the place to go. Bear in mind, if you’re brewing off-the-wall beers, such as those without hops, the Food and Drug Administration (FDA) may be your labeling authority. And, very technically, FDA has concurrent authority over your brewing business—but TTB really is the place to go when you have questions of federal brewery law. Fortunately, they’ve put together helpful resources on their website to help you wade through labeling and advertising issues.

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