Flavored Malt Beverages: Origins and Applicable Federal Regulations

6 bottles of different beers lined up on a table

By: Brad Berkman and Louis Terminello, Greenspoon Marder

There is a strange concoction that lurks within the bowels of the brewer’s tank. It is formed with malt, but is not beer, it is something other whose mere mention may frighten beer aficionados to the essence of their being. This mysterious liquid soon slithers through tubes and to the bottling line where 12oz bottles are filled with this ethereal liquid. The bottles make their way to the grocery shelf where it is soon removed from its cold box perch to the refrigerators of eager consumers. There the potion rests until its top is popped and it’s brought to the lips of the drinker. A first sip and this bottled creature metamorphizes to a glorious nectar, causing a love affair that is reflected in astounding Nielsen numbers. To the disappointment of any beer geeks, the flavored malt beverage or FMB is a darling of the brewing industry, not for its purist nature but for the sound of jingling coin that comes from the brewer’s pocketbook after each batch is made and sold and drank and asked for more of. The FMB is a clear consumer favorite.

  The FMB as a category, has an Alcohol and Tobacco Tax and Trade Bureau (TTB), codified definition. Before we get there, however, the reader should be aware that the style of drink isn’t a new phenomenon. The drink made its way first on to the shelves of certain European countries in the late 1990’s, among other places, and caused quite a bit of controversy for its generally sweet flavor profile, small bottle size, and perceived target audience.

Of course, it bears refreshing the memory that these drinks were and are offered as beer alternatives. They are meant to be, in most iterations, a light, flavorful alternative to traditional beers. Initially, they were referred to as alcopops, and now are more commonly called Ready-to Drinks or RTD’s (there are many drinks formulas that fall into the RTD category, including spirits based and non-malt based (see hard seltzer), but certainly FMB’s are a leader in that general category. Another publication reports that beer RTD’s “make up the vast majority of overall RTD’s sales with 42.7% of RTD dollar sales coming from FMB’s.  

  Some early precursors to contemporary FMB’s, the reader may recall, were Smirnoff Ice, WKD and Hoopers Hooch. In fact, this writer recalls from his prior career in “the industry”, travelling to the UK and witnessing the small cold-boxes stationed below virtually every back bar and thinking that the English will drink anything and wondering how long it will take before these drinks make their way across the Atlantic to the shores of the United Sates. Woe is me, if I only had bought stock.

  Well, the answer to the above question is, arguably 1993 with the introduction of Zima by the Coors Brewing Company. Buffs of the history of the drink will clearly remember Zima, (and the pun is intended), as the first clear, citrus-like malt-based beverage to make its way onto the beer shelf. Offered as a light alternative to beer, it had a modicum of success at introduction, but its popularity faded quickly (it was in fact re-introduced in 2017 but sales quickly sputtered out).

  The origins of RTD’s likely stemmed from restrictions on the activities permitted on the brewing premises by federal law. Creative brewers looked to unique formulations using permitted brewers’ ingredients only. A driving force behind limiting ingredients and production processes at a brewery is to ensure that tax revenue generation is not jeopardized. As the reader likely knows, malt is taxed at a different rate than wine which is taxed at a different rate than spirits and never shall the thrice be combined.  I point the reader to the following section of the Internal Revenue Code (the IRC):

26 USC 5411:

  The brewery shall be used under regulations prescribed… for the purpose of producing, packaging, and storing beer, cereal beverages containing less than one-half of 1 percent of alcohol by volume, vitamins, ice, malt, malt sirup, and other byproducts and of soft drinks; for the purpose of processing spent grain, carbon dioxide, and yeast… and for such other purposes as the Secretary by regulation may find will not jeopardize the revenue.

  As we see from the above the purpose of the brewery premises is limited to the production of beer and storing certain brewing materials. Also, the code section below has arguably a more profound limiting effect on the materials permitted on the premises. But here, I caution the reader to pay careful attention to subpart (b) of the following and different code section. It is here that lays the codified origin of the FMB.

 § 25.15 Materials for the Production of Beer

(a) Beer must be brewed from malt or from substitutes for malt. Only rice, grain of any kind, bran, glucose, sugar, and molasses are substitutes for malt. In addition, you may also use the following materials as adjuncts in fermenting beer: honey, fruit, fruit juice, fruit concentrate, herbs, spices, and other food materials.

(b) You may use flavors and other nonbeverage ingredients containing alcohol in producing beer. Flavors and other nonbeverage ingredients containing alcohol may contribute no more than 49% of the overall alcohol content of the finished beer. For example, a finished beer that contains 5.0% alcohol by volume must derive a minimum of 2.55% alcohol by volume from the fermentation of ingredients at the brewery and may derive not more than 2.45% alcohol by volume from the addition of flavors and other nonbeverage ingredients containing alcohol. In the case of beer with an alcohol content of more than 6% by volume, no more than 1.5% of the volume of the beer may consist of alcohol derived from added flavors and other nonbeverage ingredients containing alcohol.

  The above code section limited the amount of alcohol from flavors and nonbeverage ingredients containing alcohol to 49% but that didn’t stop brewers and drinks makers from creating unique products with malt base and taxed at the beer rate, making for a competitively priced product on the beer shelf. In fact, TTB permits the use of mixed cocktail names such as Margarita or Moscow Mule on malt-based products that resemble these cocktails. Many brewers have done a fine job of emulating these mixed drinks flavors under the FMB rubric. Of course, that hasn’t stopped consumers from bringing civil actions against producers arguing that these drinks have been mislabeled and are untruthful but that is a topic for another days.

  I’m sure it’s obvious to the reader that the hard seltzer craze finds its origins in the FMB category, many of which, but not all are malt based. The bottom line here is that this category of malt beverage finds its roots in three factors; consumer demand for variety of taste profiles, the brewer’s ability to create these brews within the confines of government tax revenue regulations and using ingredients that do not jeopardize revenue collection w maintaining the desired shelf price. This writer for one looks forward to watching how consumer demand for unique flavors pushes brewers to come up with creative FMB formulas which surely will lead to greater excitement in the category.

How Bars & Restaurants Can Protect Themselves Amid Heightened Violence

photo of man in bar holding down another man on a table getting ready to punch that man and a women is trying to stop that man from punching

By: David DeLorenzo

Rising violence is an unfortunate reality around the world. It’s happening close to home, too. Bar and restaurant owners are experiencing incidences involving weapons or shootings in and around their establishments on a more regular basis. This is a sad situation and a dangerous one. Bar and restaurant owners need to know what to do in the aftermath of a weapons incident. Even more importantly, they need to know how to protect themselves and help prevent incidences from happening in the first place.

  Unfortunately, many people don’t realize that it’s becoming more common for firearms exclusions to be included in insurance policies. These prevent an insurance company from having to pay out any monetary compensation to not only the insured but also victims of an incident. That means beyond any monetary compensation, these exclusions ensure the insurance company would also not have to cover other items such as risk assessment, business income lost if the establishment had to temporarily close or was hit with a lawsuit or post-counseling services for those involved. Just one incident could put a bar or restaurant right out of business. It’s important that they are aware of what their policies do and do not cover — and to protect themselves from scenarios like this.

  In the current state of the industry, and at any time, being informed is essential. Bar and restaurant owners should check their policies to see if weapons are excluded from their commercial general liability coverage. If these exclusions exist in their current policies, bar and restaurant owners should add stand-alone coverage to their policies (or purchase them separately). These will protect them in the case of active shooter and deadly weapons incidents.

  As with being educated, being proactive in preventing an incident is key. Bar and restaurant owners need to protect their businesses, their livelihoods, their staff and their patrons. That’s a heavy responsibility — one that should not be taken lightly, especially amid heightened violence situations. There are a few steps owners can take.

  First, simply posting “no weapons” signs at the entries of the establishment, on the building and around the premises (such in the parking lot) can help. If the bar or restaurant owner suspects a violent incident could occur or has noticed aggressive behavior, they could heighten security measures by hiring a door person as well as additional security personnel, preferably those who have previous law enforcement or nightclub experience.

  Proper staff training is another factor that can help bar and restaurant owners in the case of an incident (or hopefully in the instance of preventing one). It’s important for employees to receive on-going training for security as well as preventing overserving that could lead to aggressive behavior, a fight or a shooting. Servers should know how to spot an “obviously intoxicated” person and understand the establishment’s policies on how to address refusing to serve or no longer serving alcohol to an obviously intoxicated person.

  The California Department of Alcoholic Beverage Control notes: “The law states that no person may sell or give alcohol to anyone who is obviously intoxicated. Therefore, every person who sells, furnishes, gives, or causes to be sold, furnished, or given any alcoholic beverage to any OBVIOUSLY intoxicated person is guilty of a misdemeanor. A person is obviously intoxicated when the average person can plainly see that the person is intoxicated. In other words, the person looks or acts drunk.”

  Because weapons incidences are often a result of too much alcohol, staff should be trained on how to spot the signs of intoxication so they feel confident in assessing whether or not they should serve that patron. Restaurants can actually be slapped with a lawsuit if a fight breaks out on their premise. In today’s world where people become easily triggered and too much alcohol, a recipe for an incident is brewing.

  Ideally, an intoxicated person (or a person carrying a weapon) shouldn’t make it past door security — another reason to create a position for that very important role if the restaurant doesn’t already. If a staff member notices that a person is becoming intoxicated, they need to halt their alcohol service immediately.

  In addition to door security, security cameras are an excellent resource to help protect bar and restaurant owners in the case of a weapons incident. Good quality security video footage with timestamps can help catch the details of an incident, limit liability and hopefully absolve the bar or restaurant of any fault in the case of a weapons or shooting incident at their establishment.

  Keeping weapons out of the establishment is crucial, but oftentimes these acts of violence are happening around the establishments or in their parking lots, not actually inside. This is where the addition of cameras and security around the perimeters and in their parking lots can also prove helpful.

  Weapons exclusions are becoming mainstay on policies with carriers not wanting to cover violent acts with a weapon that happen on the premises of bars, restaurants and other businesses in the hospitality industry. However, with these types of instances on the rise, businesses need to ensure they are protected — as well as their employees and their patrons.

  In addition to weapons exclusions becoming more common, assault and battery exclusions as well as sub-limits on policies stating carriers don’t want as much liability on violent acts between partners and or employees are becoming more frequent. Liquor liabilities are also an issue. Liquor liability sub-limits no longer cover the full limit of an establishment’s lease.

  I was recently part of a team that worked to change the law when it comes to establishments that serve alcohol in Arizona. While it’s legal to serve alcohol to adults, establishments can literally get a claim filed on their record and get a letter from an attorney if they so much as think a person stepped foot onto their premises and had a sip of one drink. 

  The burden has been for the establishment and their insurance carrier to prove that they didn’t do something negligent. The problem with this is a combination of many things — one of them being that wording of “obviously intoxicated” mentioned earlier. This phrase has taken on whatever meaning it needs to in order for whatever party suing the establishment to make their case.

  Together with some very influential people in the Arizona hospitality along with the Arizona Licensed Beverage Association (ALBA), which was a major player in this effort, an Amicus Curiae brief was formed. With this decision by the Supreme Court being held, there should be some changes to the way establishments are sued and how insurance companies underwrite risks. This is new to everyone involved and it will take some time to see changes occur, but overall this is a win for the Arizona hospitality industry.

  Finally, it’s important that bar and restaurant owners stay in communication with their insurance agents and up to date on any changing policies. Spending some time ensuring an establishment is properly covered provides safety and peace of mind for all.

  Out of his passion to serve the restaurant and hospitality industry, David DeLorenzo created the Bar and Restaurant Insurance niche division of his father’s company The Ambassador Group, which he purchased in 2009. For more than 20 years, he has been dedicated to helping protect and connect the hospitality industry in Arizona.

For more visit: barandrestaurantinsurance.com

Is Your Tweet an Advertisement?

photo of someone holding a cell phone up to a glass of beer to take a photo

By: Brian D. Kaider, Esq.

Members of the alcoholic beverage industry should be aware that TTB regulations require certain mandatory information and prohibit some practices and statements in all advertising of alcoholic products and brands.  But, what constitutes advertising may be broader than some members realize.  Specifically, how the rules apply to the expanding realm of social media may be a bit of a surprise.

What is an Advertisement?

  “Advertisement,” as defined in 27 CFR Parts 4, 5, and 7, for wine, spirits, and malt beverages, respectively, includes any verbal statement, illustration, or depiction that is in, or calculated to induce sales in, interstate or foreign commerce, or is disseminated by mail.  The regulations further provide that the requirements for such advertisements apply regardless of the means of dissemination.  Some of the specific examples listed in the regulations include: radio or television broadcast, newspaper, periodical, publication, sign, menu, book insert, or by electronic or internet media.  The TTB considers “electronic or internet media” to include all forms of social media.

Required Information

  All advertisements must include the responsible advertiser’s name and either its city and state or other contact information, such as a telephone number, website, or email address.  If the advertisement refers to a general line of products (beer, wine, or spirits) or all of the products by the company or brand name, then no more information is required.  If the advertisement refers to a specific product, however, then it must also include a conspicuous statement of the class, type, or distinctive designation to which the product belongs.  This statement must match what is on the product label.  For example, if the product is labeled as a “Rum with natural flavors,” an ad that identifies the product only as “Rum” would be non-compliant.  Further, in the case of distilled spirits, the ad must also include a statement of alcohol content and, if applicable, the percentage of neutral spirits and the name of the commodity from which such spirits were distilled.

Prohibited Practices

  The list of prohibited practices in the advertising of alcoholic products is too long to be inclusively presented here.  However, as a generalization, an advertisement cannot: be false or misleading in any respect; be inconsistent with the product label; contain inappropriate health-related statements; or contain representations, flags, or symbols that give the impression of endorsement or sponsorship of the armed forces or any government.

Applicability to Online Media

  Most breweries, wineries, and distilleries have a website to advertise their products and/or overall brand.  The TTB views a website and all of its subpages collectively as a single advertisement.  The required information, therefore, only has to appear in one part of the website to be compliant.  The information, however, cannot be hidden; it must be conspicuous, readily legible, and apparent to persons viewing the advertisement.  While the TTB does not require a specific location on the website, it recommends that information be presented in the place consumers would typically expect.  For example, name and contact information is typically found in the “about,” “profile,” or “contact us” section.  Class, type, and alcohol content for specific products would be expected to be found on the “shop” or “products” page.  One potential problem occurs with mobile versions of websites.  They are often structured differently from their desktop counterparts and are, therefore, considered a separate advertisement and must independently be compliant with the regulations.

Social Networks and Media Sharing Sites

  Social Network Services, such as Facebook and LinkedIn are treated very similarly to websites.  Viewed as a whole, they commonly contain required name and contact information on a main page or “about” section.  In that case, individual posts may not have to contain the mandatory information.  There are exceptions for shareable content, however, as discussed below for Media Sharing Sites.

  Media Sharing Sites, such as Instagram, YouTube, Pinterest, Instagram, etc., allow companies to share photographs, videos, gifs.  As with websites and social network services, the TTB views a company’s media sharing site as a single advertisement. So, if the profile or about section of the site contains the required information, the company is generally compliant.  However, if the posted media content can be downloaded or shared by viewers, it is considered to have been disseminated by the advertiser and the content stands on its own as a separate advertisement.  So, for example, if a brewery posts a video introducing a new product and that video can be downloaded or shared by viewers, the video itself must contain all of the mandatory information.

Blogs and Microblogs

  Blogs allow a company to post stories, commentaries, images, videos and other content.  They are commonly included in a section of the company’s website and, if so, may rely on the mandatory information presented elsewhere on the website.  If the blog stands alone, separate from the website, or is electronically disseminated, then it is a separate advertisement and must independently be compliant.  Microblogs, such as Twitter and Tumblr, are different because they have a maximum character number that makes each post very short.  Because of these limitations, the TTB recognizes that the mandatory information cannot be included in each post.   Instead, to be compliant, the advertiser must provide the information either on their microblog profile page or use a descriptive link that directs the viewer to a separate webpage containing the information.

  Outside Links

  Advertisers will often include links and QR codes that direct viewers to sites outside of the original advertisement.  Similarly, a product label may allow viewers to access an augmented reality video or image.  So long as such outside content is only accessible using the product label or other advertisement that already contains the mandatory information, nothing else is required.  Otherwise, the content would have to be independently compliant.

Social Media Influencers

  Building a large following on social media can be difficult, especially for small, local businesses.  To broaden the scope of brand awareness, some turn to others who already have a large following to help promote their products.  These social media influencers may post content created by the company or may create their own content on the company’s behalf.  If the TTB determines that the post was published or caused to be published by the company or that the company compensated the influencer for publishing the content, it will be treated as an advertisement by the company and it must be compliant with TTB regulations.  The mandatory information may be provided through a clearly marked link to the company’s website, for example.

Beware the “Like” Button

  One of the benefits of social media is that the user does not have to create all its own content.  Posts created by others can be shared or “liked” by a company, which allows that content to be viewed on the company’s own page.  Doing so helps to build a following as a third-party whose content is shared is more likely to reciprocate, broadening the reach of company’s own content.  However, because shared or liked content then appears in the company’s feed, it becomes a part of the company’s advertisement and must, therefore, be compliant.  This is typically not a problem with regard to the mandatory information, because that is already included in the company’s profile.  However, the shared content must also not include any prohibited practices.  For example, if a distillery comes out with a new product that is a “rum with natural flavors,” and they share or like a user’s post in which they refer to the product only as a “rum,” they could be viewed as being noncompliant, because the ad is inconsistent with the product label. 

Conclusion

  The rules for advertising an alcoholic product or brand on social media really are not any different from the rules for advertising in more traditional media.  Issues may arise, however, because social media enables new and different ways of presenting information and it may not always be obvious that they are advertisements.  Further, because of the ease of disseminating content, it can become detached from its original source, which would take it out of compliance if it does not contain the mandatory information.  Having an attorney periodically review social media content and/or train marketing staff may help to avoid compliance issues. 

The information presented in this article is based upon TTB Industry Circular 2022-2 and the regulations contained in 27 CFR §§4.60-65, 5.231-236, and 7.231-236.  Review of those materials is recommended.

  Brian Kaider is the principal of KaiderLaw, a law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of licensing and regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.

New(ish) TTB Guidance on Transfer of Beer Between Breweries

Warehouse showing beer and beer bottle storage.

By: Brian D. Kaider, Esq., KaiderLaw

There are many reasons why beer might be transferred from one brewery to another.  Some common examples include; beer transferred between two locations of the same brewer, beer contract brewed by one brewery for another, and beer to be blended as part of a collaboration.  How these transfers are handled and, more importantly, how taxes are applied varies according to the circumstances.

Breweries of Common Ownership

  Since at least 1954, federal law has allowed the transfer of beer, without payment of tax (i.e., “in bond”) between breweries of common ownership.  Title 26 of the U.S. Code §5414, as written in 1954 simply stated “[b]eer may be removed from one brewery to another brewery belonging to the same brewer, without payment of tax, and may be mingled with the beer of the second brewery, subject to such conditions, including payment of tax, and in such containers, as the Secretary or his delegate by regulations shall prescribe.”

  Some terminology here may be helpful.  When the President signs a law passed by Congress, the provisions of the law are broken up into subjects and listed in the U.S. Code (U.S.C.).  For example, laws relating to federal taxes are listed in Title 26 of the U.S.C. (the “Internal Revenue Code”) and those taxes that apply to alcoholic products are listed in Title 26, Subtitle E, Chapter 51.  But, it is up to the applicable government agency in charge of enforcing the law to determine how to put the law into practice.  So, it creates “implementing regulations” that are categorized and listed in the Code of Federal Regulations (“C.F.R.”).  In this case, C.F.R. Title 27, Chapter I, Subchapter A, Part 25, Subpart L, sections 25.181-186 were created by the TTB to deal with the transfer of beer to another brewery of the same ownership.

  In 1958, Congress amended 26 U.S.C. §5414 to further allow transfer in bond between breweries owned by different corporations, if either (A) one corporation owns a controlling interest in the other, or (B) the controlling interest in both corporations is owned by the same “person,” which may be a third corporate entity.  Breweries in one of these arrangements are said to be in a “controlled group.”  As most small breweries are aware, in 2017, the Craft Beer Modernization Act (“CBMA”) provided for a reduced tax rate of $3.50 per barrel on the first 60,000 barrels per year, a level the vast majority of U.S. breweries will never exceed.  This reduced tax rate applies to the first 60,000 barrels of beer removed for consumption by members of a controlled group, collectively.  So, if there are two members of the controlled group, each of which produces 35,000 barrels of beer that are removed for consumption in a given year, the last 10,000 of those barrels will be subjected to the higher tax rate of $16.00 per barrel.

Contract Brewing

  Until 2017, beer could only be transferred in bond between breweries under common ownership or control, as described above.  The CBMA, however, added section (a)(3) to 26 U.S.C. §5414, which authorizes the transfer in bond between breweries of different ownership, provided that the transferor divests itself of all interest in the transferred beer and the transferee accepts responsibility for the payment of tax.  Thus, a brewery that contract brews a beer for another brewery can transfer that beer in bond to the contracting brewery.  The tax that will apply to that beer when removed for consumption, however, is not so clear-cut.

  The reduced tax rate of $3.50 per barrel applies only to beer produced by the brewery paying the tax.  So, if Brewery A pays Brewery B to manufacture “Hypothetic Ale,” and Brewery B brews the beer, bottles it, labels it, and sends it back to Brewery A, in bond, when Brewery A removes that beer for consumption, it will have to pay the full $18.00/barrel tax rate.  The question, then, is what activity by the receiving brewery counts as “production?”

  When Congress first passed the CBMA, it was initially set to expire after two years.  So, rather than go through the lengthy process to issue implementing regulations for this temporary law, the TTB instead issued Procedure 2018-1, which explained how it would address the changes in the law.  In 2020, Congress passed the Taxpayer Certainty and Disaster Tax Relief Act, which among other things made the CBMA changes permanent.  As it works through the process of drafting and approving implementing regulations, TTB on July 13, 2023 issued Procedure 2023-1, which contains the guidance of 2018-1 with some minor updates.

  According to Procedure 2023-1, a brewery receiving beer in bulk that only carbonates the beer or transfers it into consumer packaging is only making de minimus changes to the beer and is not eligible for the reduced tax rate.  A beer is considered to be “produced” if it is brewed by fermentation or “produced by the addition of water or other liquids during any stage of production.”  Thus, if a brewery receives bulk beer concentrate and adds water to it before packaging, they will be considered the producing brewery and will be eligible for the $3.50 tax rate. 

  The TTB guidance does not indicate how much water must be added in order to be considered production.  Here, reasonableness should be the guiding principle.  Receiving a ten barrel batch of bulk beer and adding a gallon of water would certainly not be viewed as “producing” the beer.  If, on the other hand, the transferred beer is sufficiently concentrated to enable it to be shipped in one container instead of two, adding an equal amount of water upon receipt would likely be viewed as production. If in doubt, contacting the TTB or a knowledgeable attorney in advance to get guidance on a specific situation is a good approach.

Blending/Collaboration

  Collaboration beers are becoming more common and can be a great way for new breweries to gain market recognition by collaborating with a more established brewery.  In some cases, the two breweries design a recipe together and then one brewery does all of the actual production.  In other cases, each brewery may produce a beer and then the two beers are blended together into a single product. 

  According to Procedure 2023-1, however, the TTB does not consider “blending” to be production for the purpose of taking the lower tax rate.  That does not mean, however, that the entire blended product is subject to the higher tax rate.  Rather, if a brewery blends a beer of its own production with a beer produced by another brewery not of the same ownership (or control group), it may take the $3.50/barrel tax rate on the portion of beer it produced, but must pay the $18.00 rate on the portion produced by the other brewery.  Of course, if the other brewery’s beer is delivered as a concentrate to which water is added in addition to the blending, then the beer would be considered to be produced by the receiving brewery and the lower tax rate would apply to the entire batch.

Records

  Whether breweries are commonly owned, part of a controlled group, or completely independent, when transferring beer in bond, proper records must be maintained by both the sender and the recipient. 

  The shipping brewer should prepare an invoice that includes: a statement that the beer is transferred in bond, the name and address of the shipping brewer, the date of shipment, name and address of receiving brewer, the number and size of cases and/or kegs and total barrels or the size and type of bulk container and total barrels. The original invoice should be sent to the receiving brewer with a copy kept by the shipping brewer. 

  Beer may be reconsigned to another brewery or returned to the shipping brewery while in transit.  In such cases, either a new invoice should be created and all copies of the original voided or the original invoice can be marked with “Reconsigned to:” followed by the name and address of the brewery to which the beer is reconsigned.  When the shipment is received, the receiving brewery must verify the information on the invoice, note any discrepancies, and maintain the invoice in the brewery records.  The brewery to which the beer is reconsigned or returned is responsible for tax on any beer lost in transit.  However, if the loss is not greater than two percent of the quantity shipped, the receiving brewer is not required to file a report of loss or a claim for allowance of the loss if there are no circumstances indicating that any portion of the beer lost was stolen or otherwise diverted to an unlawful purpose.

  The information on the invoice, including any discrepancies, should be used by both the shipper and receiver in their Brewery Report of Operations (TTB F 5130.9) or Quarterly Brewery Report of Operations (TTB F 5130.26).  Whether the entities are commonly owned, part of a control group, or separate entities, the shipper notes the beer transferred in bond on line 19 of F 5130.9 or line 11 of 5130.26.  The receiving brewer notes the received beer on line 5 of 5130.9 or line 3 of F 5130.26.  When the receiving brewery removes the beer for consumption, it should be reported on line 14 of 5130.9 or line 10 of 5130.26.

Conclusion

  Any brewery that is contemplating transferring beer to another brewery, regardless of ownership, would be well-advised to thoroughly review TTB Procedure 2023-1.  Further, these issues should be considered when expanding to a second location or entering into a contract brewing or collaboration arrangement.  Creating the appropriate corporate structure for common ownership or a controlled group for the expanded business may prevent application of a higher tax rate.  Similarly, ensuring that both parties to a collaboration do enough work on the finished product to be considered a “producer” for the resulting beer may prevent a portion of the product from being assessed at the full tax rate.  As always, consultation with an experienced attorney on these issues is a best practice.

  Brian Kaider is the principal of KaiderLaw, a law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of licensing and regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.

Proactive, Protective Measures to Avoid Liquor Liability

2 people negotiating showing hands

By: David DeLorenzo

There is a plethora of things business owners in the hospitality industry need to oversee and manage. Bars and restaurants that serve alcohol have the added challenge of serving their customers while also avoiding the liabilities associated with a guest’s alcohol consumption — and the choices they make upon leaving an establishment.

  One of the biggest dangers bar and restaurant owners should steer far clear of is becoming part of a lawsuit related to drunk driving. It cannot be overstated that establishments serving alcohol need to be extremely diligent about their protocols and also vigilant about their insurance policies. They should ensure they not only have proper coverage to protect their business and staff in the event of an alcohol-related lawsuit, they should also stay on top of the ever-changing liquor laws. This is for the safety and protection of all parties. 

  First and foremost, bar and restaurant owners should have good insurance. They also need to be aware of what their policies cover — and what they don’t. Though understanding the ins and outs of insurance may not seem like something that a hospitality business owner has time for, it is vital to the success of their business. Ideally, a bar or restaurant owner should work with an insurance agency that specializes in their industry and is well versed in the laws that impact it. They should also work with an agent who keeps current on the ever-changing laws that pertain to things like liquor policies. Keep in mind unexpected changes such as the ability to sell cocktails and other alcoholic beverages to go during COVID as well as marijuana usage and weapons exclusions, too, which are impacting today’s businesses in new ways.

  It’s always recommended business owners have their policies reviewed at least once a year. This way, they can be notified of changes or new exclusions or endorsements and take stock of whether they need to modify or add to their current policies to better protect themselves. This is also a good time to make note of any changes to the company that need to be reflected and protected in their policies. The “better safe than sorry” adage is not too cliché for this scenario. Just one incident can put a company out of business if they are not properly covered. Just as with auto insurance, some people may not understand they didn’t have the right coverage until an accident — and then it’s too late. This is where an agent that specializes in the hospitality industry can best guide and protect the business, staff and customers alike.

  Beyond air-tight insurance coverage, there are many things bar and restaurant owners can take into their own hands to ensure the safety and protection of staff and customers. Bar and restaurant owners should ensure they have the current certificates for serving alcohol in their state.

  Education is crucial. Employees must understand how liquor law works, how they can notice intoxication and know what steps that need to be taken in order to avoid overserving of alcohol.

This begins with safety training for all staff as well as training staff on how to properly identify an intoxicated person before they even enter the bar. Is it also vital that staff understands how to detect whether a customer is becoming intoxicated during their service.

  It is illegal for an establishment to allow an intoxicated person onto their premises — so safety begins at the door. It is important that a bar have door security to do ID checks to ensure first that guests are indeed of age and also that they are not intoxicated before they even step inside. In addition to door security, bars may want to invest in security personnel for their exterior or parking lot areas as well.

  Upon entry, it is also essential that staff understands how much is too much when it comes to serving their patrons. Training staff on the obvious symptoms of intoxication can help prevent a lawsuit. Signs to watch for can include slurring speech, becoming loud, the pace of their drinking, red eyes or flushed face. It is also important to note that it is illegal to serve an intoxicated person whether or not they are driving.

  Obviously no bar or restaurant owner wants to turn away customers or have to cut them off during their service. However, these measures need to be seen as non-negotiable safety protocols for staff and customers. It could be a matter of life or death if an intoxicated person decides to leave, get in their car and drive away. They are then not only putting their own lives in danger but putting others’ lives at risk.

  Another strategy bar and restaurant owners can employ to help protect themselves is the use of surveillance cameras in and around their property. This can be a lifesaver. Video surveillance can provide timestamped evidence of an incident, such as a fall in the kitchen or a server-customer interaction that can help prove vital in a court of law. Surveillance cameras are a wise investment and are there for safety and protection of all parties.

  It’s also crucial to think about specials bars and restaurants are offering. While happy hour drink specials are a great way to bring in much-needed customers to help boost sales, this can be a risky move — especially reverse happy hour specials that are offered at the end of the night or right before the restaurant is closing. It’s also a good idea to avoid “last call.” These measures can be construed in a lawsuit as encouraging patrons to order more drinks before alcohol will no longer be served or to order more alcoholic beverages because they are being offered at a discounted price.

  It is also key to stay up to date on liquor laws. Knowledge of any changes should be a red alert to check with the company’s insurance agent to see how that might impact current coverage. Staying in communication with their insurance agent can also help bar and restaurant owners ensure they are properly covered as laws and policies change.

  I understand that is a lot to keep up with, especially while trying to operate a bar or restaurant in today’s unstable climate. That is why I created my Connector and Protector Hospitality Series on YouTube. It features videos and interviews with experts on topics such as liquor liability and more to help guide bar and restaurant owners. It is a goal of mine to help my clients and everyone in the hospitality industry be successful — and safe.

  The bottom line is that no one wants an accident to happen to their customers or their staff. Putting simple protocols in place to avoid an incident may seem tedious. However, they can be lifesaving and could save a business if it is hit with a liquor liability lawsuit. Taking proactive and protective measures is for the benefit of all.

  Out of his passion to serve the restaurant and hospitality industry, David DeLorenzo created the Bar and Restaurant Insurance niche division of his father’s company The Ambassador Group, which he purchased in 2009. For more than 20 years, he has been dedicated to helping protect and connect the hospitality industry in Arizona. For more information visit barandrestaurantinsurance.com

Enforcing Your Trademarks: How Far Should You Go?

corporate man punching the letter R

By: Brian D. Kaider, Esq.

You’ve secured federal registration for your trademarks and you’ve been building your brand recognition.  Per your trademark attorney’s recommendation, you’ve had quarterly searches conducted to find similar marks.  Lo and behold, a new entry to the market is using your trademark.  Now what?  Stop and take a breath; let the initial surprise or anger settle. There is a lot to consider before taking any action.

Take Stock of the Situation

  First, take a look at your own trademark.  Is it the name of your company or of one of your products?  Is it a national brand or one that is distributed in a small geographic area?  In what classes of goods and services is it registered (e.g., class 033 for vodka, class 040 for “rectification of distilled spirits for others,” etc.)?

  Then look at the competitor’s mark.  Is the mark identical to yours or similar?  How similar?  Is it broadly distributed?  Is it used for the same goods and services as your mark?  If not, how similar are the goods and services?  Are your products marketed through the same trade channels?  Are consumers likely to encounter both your products and theirs?  Have they attempted to register their trademark and, if so, where are they in that process?

  No one question will be determinative in any given case, but on balance, they will help develop a sense of how much effort should be expended to enforce your rights.  As discussed below, there are numerous paths, each with its own set of risks and potential rewards.  An international brand that is known throughout the industry, like Jack Daniel’s®, must be far more protective of its marks than a small brewery in Oregon that has a registered trademark for an IPA product only distributed in the Pacific Northwest.

First Contact

  As the owner of a registered trademark, it is your duty to “police” your mark; that is, to monitor unauthorized use of your mark by others and to enforce your right to exclusivity of that mark.  When large corporations learn of potential infringement, their immediate response is generally to have their attorneys send a cease and desist (C&D) letter.  For smaller companies, a personal attempt to contact the owner of the infringing business is often effective.  Sometimes the other party simply did not know about your mark.  If you found their use of the mark before they spent considerable time and money developing it as a brand, they may be willing to simply let it go.

  When making these calls, it is important to maintain a demeanor that is both friendly and firm.  There is no need to accuse the other side of wrong-doing or of violating your trademark knowingly.  However, you should simply let them know that you do have a registration for the mark and that their use is likely to cause confusion in the market as to the source of your respective goods.  If you give them a reasonable amount of time to work through any inventory bearing the infringing mark and to rebrand, this can often be the end of the matter.

Cease and Desist Letter

  If the friendly approach doesn’t work, the next step is generally a cease and desist letter.  This is most effective if drafted and sent by an attorney.  The tone of these letters tends to be more matter-of-fact.  They identify your trademark(s); explain that you have spent a considerable amount of time, effort, and money to build your brand around the mark; identify the other party’s infringing use; state that the use is unauthorized and likely to cause economic harm and loss of goodwill in your brand; and demand that they stop using the mark within a given time frame.

  While these letters can sometimes be effective, especially against smaller companies, they have become so commonplace that often they are simply ignored by more savvy companies who may wait to see if further steps are taken before deciding whether to rebrand.  Accordingly, you should carefully weigh all of your options and decide in advance whether you will escalate the matter if your C&D letter is ignored.

Letter of Protest / Trademark Opposition

  If the other side has attempted to register their mark, there are two ways to try to prevent the registration.  First, you can file a “letter of protest” with the U.S. Patent and Trademark Office (USPTO).  The letter simply informs the trademark examiner of the existence of your trademark and the reasons why you feel that registration of the other party’s mark would damage your mark.  The benefit of this approach is that it is quick, easy, and relatively inexpensive as it generally only takes a few hours for an attorney to prepare and file the letter.  Often filing the letter will prompt the USPTO to issue an office action refusing the registration in light of your trademark, forcing the other side to argue why registration should be allowed.  The downside to the letter of protest is that once it is filed, you have no further opportunity to engage in the process.  If the other side responds to an office action with arguments as to why registration should be permitted, you cannot respond to those arguments. 

  Whether you have filed a letter of protest or not, if the USPTO’s trademark examiner determines that the mark is registerable, it will publish the mark in the Official Gazette.  This publication opens a 30-day window for anyone who believes they will be harmed by registration of the mark to file an opposition to the application.  

  This process should not be entered into lightly.  In some cases, simply filing the opposition will be enough to get the other side to give up its mark.  But, if they choose to fight the opposition, you will find yourself in a litigious process that takes time, effort, and money to complete.  As in civil litigation, the parties to an opposition file motions and briefs, request documents from the other side, take depositions, serve interrogatories that must be answered, and present their evidence to the Trademark Trials and Appeals Board for its consideration. 

  If the opposition goes all the way to the trial stage, it will generally take at least 18 months from when the notice is filed to when the last brief is due and will cost each side in the tens of thousands of dollars.  As with civil litigation, most oppositions do not reach the trial stage, because the parties are able to come to terms and settle the dispute on their own.  But, this often does not occur until sometime in the discovery phase, after both sides have spent a considerable amount on legal fees.

  It is important to note that the object of an opposition proceeding is to prevent registration of the other side’s trademark and, if you are successful, that is your sole remedy.  There are no monetary damages awarded, nor can you recover your legal fees from the other side.  Moreover, while they will lose their ability to register their trademark, it does not necessarily mean the other side will stop using the mark on their goods or services.  In that case, you would have to file a trademark infringement litigation (see below) to get them to stop using the mark, entirely.  In practical terms, succeeding in an opposition will often be enough to get the other side to abandon their mark, because if you were to follow through with a civil litigation, they could be on the hook for treble damages for willful infringement.

Trademark Cancellation

  If you discover the other side’s trademark application after the 30-day opposition window has expired, your only option to challenge the mark at the USPTO is to wait until the trademark actually registers and then to file a trademark cancellation proceeding.  Though there are some differences between cancellation and opposition proceedings, particularly if the challenged mark has been registered for more than five years, they are similar in most procedural respects. 

Trademark Infringement Litigation

  As one might expect, filing a trademark infringement case in federal court is the nuclear option.  Depending upon the jurisdiction, the time frame for completing a litigation may be faster or slower than an opposition or cancellation proceeding at the USPTO.  But, whereas those procedures will likely cost the parties tens of thousands of dollars, a civil litigation will likely reach six figures, or more. 

  The reason for this higher cost is that there are more issues to consider in these cases.  If you are successful in a civil litigation, you may not only obtain injunctive relief, foreclosing the defendant from all future use of the mark, but also may obtain monetary damages associated with the defendant’s past use of the mark, as well as attorney’s fees expended in the proceeding.  Moreover, if the defendant is found to have willfully infringed your trademark, they may be required to pay treble damages. 

  These issues, which are not even addressed in an opposition/cancellation, add breadth to the scope of discovery taken, which increases the cost.  Further, whereas most opposition/cancellation proceedings are decided without an oral hearing, a civil litigation generally requires live testimony and argument in front of a judge or jury.  These proceedings require a great deal of attorney preparation, dramatically increasing legal fees.

Conclusion

  As the owner of a valid trademark registration, you are obligated to police your mark and failure to do so can result in a dramatic diminishment of your rights or even outright abandonment of your registration.  But, that does not mean you have to file a civil litigation against every minor infringement.  Determining the appropriate path in any given situation requires a careful evaluation of all the circumstances and balancing the risks of action versus inaction.  It is critical to engage a knowledgeable trademark attorney, who will properly assess these risks, your likelihood of success, and the most effective course of action in your case.  

  Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry.  He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation. 

Breweries Making Hard Cider: Beware a Trap in the Regulations

waiter handing out drinks to guests

By: Brian D. Kaider, Esq.

Breweries are seeing increased demand for alternative products from customers who prefer a beverage other than beer.  Hard ciders are a popular choice both for flavor and because they are typically gluten-free.  However, it is crucial for breweries to familiarize themselves with the specific legal requirements associated with cider production.  In particular, there are three critical characteristics of a cider product that affect how it is regulated: alcohol level, ingredients, and carbonation level.  Moreover, there is an absurd structure to hard cider excise tax rates that results in one popular category of ciders having a dramatically higher tax rate than others.  For those unaware of this distinction, enormous outstanding tax liabilities and penalties could accrue.

Licensing Requirements

  For simplicity’s sake, this article will use the term cider to include both cider made from apples and wine made from pears, i.e., “perry.”  In practice, there are distinctions between these products, particularly when it comes to labeling.

  Some state licensing bodies regulate hard cider as a beer and do not require breweries to obtain any additional licenses or permits to manufacture hard ciders.  The federal Alcohol and Tobacco Tax and Trade Bureau (TTB), however, regulates hard cider as a wine.  Thus, before a brewery may begin manufacturing hard ciders, it must obtain a winery permit.

Alcohol Level

  When it comes to the alcohol level in finished cider products, there are three important numbers to keep in mind: 0.5%, 7.0%, and 8.5% Alc./Vol. (“ABV”).  Any cider product with an ABV in excess of 0.5% falls under the Internal Revenue Code implementing regulations (27 C.F.R. part 24), must be made at a qualified bonded wine premises, and, under the Alcoholic Beverage Labeling Act (“ABLA”), must include the Government Health Warning Statement. 

  Because the Federal Alcohol Administration Act (“FAA Act”) defines wine as having from 7% to 24% alcohol by volume, if a product is between 0.5% and 7.0% ABV, a Certificate of Exemption is needed, rather than a Certificate of Label Approval.  Further, the product is not subject to other FAA Act requirements, such as, advertising, trade practices, labeling proceedings, standards of fill, etc.  Instead, these products must comply with the applicable FDA food labeling and packing requirements, which include ingredient, nutrition, and allergen labeling requirements; though some small businesses are exempt from the nutrition facts requirements.

  Cider products in excess of 7% ABV, however, must comply with all FAA Act requirements, including COLAs and mandatory labeling requirements. (Note: if a product in excess of 7% ABV is not sold in interstate commerce, it can be covered by a Certificate of Exemption rather than a COLA.) 

As discussed more fully below, only ciders with an ABV below 8.5% are eligible for the hard cider tax rate.  Ciders at or above 8.5% ABV are taxed at a wine rate determined by alcohol content and carbonation level.

Ingredients

  It is generally understood that cider is made from the fermented juice of apples and perry from the fermented juice of pears.  But, even the simple addition of sugar above certain levels affects how a product is categorized, labeled, and taxed.  If other fruits are added, there are different classifications depending on whether the fruit is added before fermentation, after fermentation as a flavoring, or the wine of two fruits (e.g., apples and blueberries) are blended after fermentation.

  Taking the simplest case, a product can be labeled simply “cider,” “hard cider,” or “apple cider” if it is produced by the normal alcoholic fermentation of the juice of sound, ripe apples and is derived wholly (except for sugar, water, or added alcohol) from apples.  Even in this case, excess sugar or water can require special labeling (i.e., “specially sweetened cider”), formula approval, and application of a different excise tax rate.

  Any cider product that is made with fruits other than apple or pear or to which spices, flavoring, or coloring materials have been added will require a more descriptive designation, such as cider with natural flavors.  If two kinds of fruit juice (apple and blueberry) are fermented together, the statement of composition must be “apple-blueberry wine” or “blueberry cider.”  This product would not require a formula, because it would still be considered a natural wine.  A cider to which fruit juices, herbs, spices, natural aromatics, natural essences, or other natural flavorings are added after fer-

mentation would be considered a Special Natural Wine, would require a formula approval, and would require a statement of composition such as, “cider with natural blueberry flavors.”  If fermented cider is mixed with another fermented fruit wine, the product would be considered an “other than standard wine,” would require a formula approval, and would be designated as “apple wine – blueberry wine,” “cider – blueberry wine,” or a similar designation.

Carbonation Level

  A cider with a carbon dioxide level of up to 0.392 grams per 100mL is considered a still wine and may be labeled simply as a cider (assuming it meets the other ingredient requirements mentioned above).  If the carbon dioxide level is above 0.392 grams per 100mL, the cider must be designated as “sparkling” if the CO2 results solely from secondary fermentation within a closed container or “carbonated” if the CO2 is artificially injected into the product.  In order to be eligible for the “hard cider” tax rate, the CO2 level must be below 0.64 grams per 100mL.  For reference, a CO2 level of 0.392g/100mL or 0.64g/100mL is roughly equivalent to 1.98 volumes of CO2 and 3.24 volumes of CO2, respectively.

Excise Tax Rates

  Brewery owners are accustomed to a fairly simple federal excise tax assessment.  The first 60,000 barrels per year are assessed at $3.50 per barrel.  The tax rates for cider are not that simple.  In fact, there is an enormous trap in the tax structure that could cause serious problems for breweries that venture into cider production unaware.

  As explained above, the TTB regulates cider as a wine. It is important to note that the wine tax rates are assessed per gallon, not per barrel.  Although considered a wine, the regulations provide a special tax rate for “hard ciders,” of $0.226/gallon.  Like beer, however, there is a tax credit for small producers, reducing the hard cider rate to $0.164/gallon for the first 30,000 gallons.  But, the scope of products that qualify for this tax rate is very narrow.  It includes only products made from apples and/or pears that contain no other fruit product or fruit flavoring, have an ABV of greater than 0.5% and less than 8.5%, and a carbonation level below 0.64g/100mL (about 3.24 volumes of CO2).  Ingredients that impart flavors other than fruit flavors, such as spices, honey, hops, or pumpkins do not make a wine ineligible for the hard cider rate, according to Industry Circular 17-2 (even though pumpkins are fruit).

  If a hard cider product has any fruit other than apples and pears (and pumpkins) or has an ABV of 8.5% or higher, it does not qualify for the “hard cider” rate, and instead falls under the wine tax structure.  If the product has a carbonation level below 0.392g/100mL, it would be considered a still wine.  The tax rate for a still wine, under 16% ABV is $0.07/gallon for the first 30,000 gallons.  If the product has a carbonation level above 0.392g/100mL the first 30,000 gallons would be taxed as a “sparkling wine” at a rate of $2.40/gallon if the carbonation resulted from secondary fermentation in a sealed container, or as an “artificially carbonated wine” at a rate of $2.30/gallon if the carbon dioxide was injected into the product. 

  What may not be immediately apparent is the absurdity of this tax structure.  The following table should put it into perspective.  It shows five different products, their base tax rate, the tax rate per barrel, and the actual federal excise tax applied to a 6-pack of 12oz bottles.

  Thus, if making a cider product that contains fruit other than apples or pears and that is carbonated above 0.392g/100mL (about 1.98 volumes of CO2), a manufacturer will face a federal excise tax more than 30 times greater than if the carbonation level was below 0.392g/100mL.  Failure to appreciate this distinction and to pay the appropriate tax rate could result in an assessment of stiff penalties and interest and could even result in termination of the manufacturer’s permit.

Conclusion

  Entering the realm of hard cider production requires breweries to navigate a set of regulatory issues that are likely to be unfamiliar.  Beer and cider are treated very differently by the TTB and it is critical to understand the categories that cider products fall into with regard to labelling, formula approvals, and particularly excise tax assessments.  For those considering an expansion into this area, it would be wise to consult with an attorney knowledgeable in these areas to ensure full compliance. 

  Brian Kaider is the principal of KaiderLaw, a law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of licensing and regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.

Three Commonly Overlooked Legal Issues for Breweries

beer rest on a flat surface

By: Brian D. Kaider, Esq.

Breweries have to deal with many legal issues, including licensing requirements from various federal and state agencies, formation of a corporate entity, negotiating contracts, and registering trademarks.  With so many new skills and requirements to learn, it can be easy to miss something.  Below are examples of three legal issues that are often overlooked.

Failing to Require Employment Agreements

  There are a million things to do when starting a brewery.  Finding and hiring staff checks off a significant box on the list and it can be easy to overlook the need for an employment agreement for these early hires.  Later, there is little enthusiasm to impose these agreements retroactively or to apply them to new hires when they were not required for original employees.   Yet, employment agreements serve a variety of functions that are so essential that their omission can cause substantial problems down the line.  

  As a preliminary matter, an employment agreement defines the relationship between the parties.  Often breweries will try to categorize workers as independent contractors as opposed to employees, because this distinction allows the brewery to avoid providing certain benefits that are required for

employees.  But, the IRS does not care about the brewery’s characterization, it cares how the worker is treated, and the key determination is control.  An independent contractor is hired to provide a function, but has significant autonomy to perform that function when, where, and how they see fit.  Often they will provide their own equipment and set their own hours.  By contrast, if the brewery exercises control over the worker by imposing certain work hours, requiring the job to be performed in a certain way, and providing the equipment used, the worker is considered an employee.

  There are many important sections of an employment agreement, including designation of at-will employment, requirement to abide by rules set forth in the employee handbook, etc.  But two often-overlooked sections relate to confidentiality and assignment of intellectual property.  Although the brewing industry is far more collaborative and congenial than most, it is still a competitive business and certain information should be treated as confidential and/or trade secret.  Employees should be made aware that unauthorized disclosure of business plans, growth plans, customer and supplier lists, recipes, and marketing ideas, to name a few, can cause harm to the business.  This section of the employment agreement not only serves that notice function, but can set up more enforceable consequences if the terms of the agreement are breached.

  Breweries generate a significant amount of material that can be protected by trademark or copyright registration.  Label designs, beer names, domain names, and social media accounts are all valuable assets that should belong strictly to the business.  An assignment of intellectual property section in an employment agreement sets forth the understanding that anything created during the term of employment is the sole property of the business.  As an example, if an employee has artistic talents that are used to develop designs for labels, those artistic designs should be assigned to the company.  Otherwise, the employee would have the right to sell the same designs to other companies or individuals who may use them in a way that is detrimental to the brewery’s brand.

Failing to Secure Music Licenses

  Music is such a common part of the brewery experience that many people take it for granted.  However, breweries must obtain the proper licensing to play copyrighted music in their establishments or they could face a copyright infringement suit and potentially crippling statutory damages that could be as much as $150,000 per instance.

  Under U.S. copyright law, the owner of a piece of music has the exclusive right to control its use, including whether or not it may be played in a public setting.  Typically, however, while the artist may own the copyright, s/he delegates the task of licensing its use to a Performing Rights Organization (PRO) such as the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music, Inc. (BMI).  In some cases, a single artist may have some of its songs licensed by one PRO and others licensed by another.

  So, is a license required for every song played in a brewery?  Generally, yes, in order to publicly play any piece of music, a brewery must obtain a license from the PRO that has the piece in its catalog.  Below are some common situations where a license is required, followed by some exceptions to the general rule, and one very simple way to stay in compliance.

  Disk Jockeys by their very nature play a variety of pre-recorded music.  Although it may be the DJ that selects the pieces it plays, because the venue derives the benefit of the music, it is responsible for obtaining all necessary licenses. 

  Bands that play “cover songs” written by another artist fall under the same category as DJs.  But, what about bands that play only original songs?  The brewery should ask the band whether it is affiliated with a PRO.  If so, even if the band is playing its own music, the venue needs a license for the performance.

  Purchased music is only licensed for private use.  Many people assume that when they buy a record, CD, or digital audio file that they own the music and can do anything they want with it.  In reality, the purchase price of that music only covers private use and does not entitle the owner of that copy to broadcast it to the public.  So, even if the brewery owner brings in her own collection of vintage vinyl, she must obtain a license to play the records in the taproom.

  Generally, music licensing fees are not terribly expensive, but vary according to the size of the establishment and the type of music being played.  In some cases, discounts may be available.  For example, the Brewers Association has negotiated a discount with BMI of up to 20% for its members.  

  There are a few exceptions that will enable music to be played without a license, but they are narrowly construed and must be followed carefully.  Music that is broadcast to the general public over the radio, television, cable, or satellite services may be played in a brewery without further license if the establishment is smaller than 3,750 gross square feet, including all interior and exterior spaces used for customer service.  Larger spaces may also qualify for license-free performance, but other restrictions apply, such as: the music may not be played over more than six loud-speakers or more than four in one room; there may not be a cover charge to enter the establishment; and audiovisual content may not broadcast over more than four televisions or more than one in a single room.  Music may also be played in the brewing space or offices for the benefit of employees, as long as it is not audible to the patrons in the tasting room.

  By far, the simplest way to get music in the brewery is to use a commercial streaming service, such as Pandora For Business or Sirius XM For Business.  The fees for these services include performance royalties and do not require any additional license.

Failing to Report Changes in Proprietorship or Control

  It should come as no surprise that when forming a brewery the TTB will want to know exactly who owns the business and who is in charge.  It should be equally unsurprising, then, that if there is a change in ownership or control of the business, the TTB must be informed.  Yet, this is an often-neglected requirement and failure to adhere to the letter of the law can have serious consequences. 

  It is important to understand the distinction between a change in proprietorship and a change in control.  A change in proprietorship occurs when there is a change in the entity that owns and operates the brewery.  The obvious example is if the brewery is sold to a new company.  Clearly in that situation, the TTB must be made aware of the new ownership and the law requires that the notification be made well in advance of the proposed change.  Specifically, 27 C.F.R. §25.72 requires that the successor brewer “qualify in the same manner as the proprietor of a new brewery” before beginning operations.  Less obvious examples might be the conversion of an LLC to an S-Corporation or the folding of the brewery business under the umbrella of a parent corporation that has the same owners and officers as the brewery business.  Both those situations involve changes to the proprietorship and must be cleared with the TTB before operating under the new structure.

  By contrast, a change in control occurs when there are changes in stock ownership, LLC membership unit ownership, or major changes in the corporate officers or directors of a corporation.  The same business entity continues to operate the business, so there is no change in proprietorship, but there is a change in who controls the business within that entity.  In this situation, an amended Brewer’s Notice is required to be submitted within 30 days of the change.  Further, if a new LLC member or stockholder holds more than 10% interest in the business, a new Personnel Questionnaire must also be filed.  Common situations that involve a change of control may include the removal of a founder, death of a member, addition of a new corporate officer with ownership interest, addition of new members through a round of fund-raising investments, or the buy-out of previous investors.

  Failure to abide by the notice requirements for changes in proprietorship or control can have serious consequences, including forced shutdown of operations until the licensing matters are resolved and possible monetary penalties.

Conclusion

  These are just three of the legal issues that breweries often overlook.  There are, of course, many more.  Engaging an attorney that understands the industry early in the process of starting a brewery and maintaining the relationship throughout the life of the business is the best practice to ensure compliance with all requirements.

  Brian Kaider is the principal of KaiderLaw, a law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.

Fractional General Counsel: A Flexible Solution for Legal Services

corporate man typing

By: Brian D. Kaider, Esq.

Every business has legal needs that require the assistance of an attorney. Like other small businesses, most breweries and distilleries do not have the resources or the need to hire a full-time, in-house general counsel. But, with the high cost of legal services, many owners only contact an attorney as a last resort.  A fractional general counsel arrangement offers a flexible solution.

What is a Fractional General Counsel?

  In broad terms, a corporate attorney can be an in-house counsel, which is a full-time employee with a salary and benefits, or an outside counsel, which is an independent contractor.  Outside counsel work under a variety of fee structures, such as an hourly rate, a flat fee, a retainer, or some combination thereof.  Flat fee arrangements are typically used for a specific, defined project, to be completed at an agreed upon price, often paid in advance.  Retainers are often a fee charged in advance by the attorney and held in an escrow account.  As the attorney completes work, fees are transferred from the escrow account to the attorney. In some cases, when the retainer drops to a certain level, the client is billed to replenish the funds. 

  A fractional general counsel is slightly different.  In this arrangement, the client pays a fixed fee for a certain amount of the attorney’s time, usually on a weekly or monthly basis.  What happens if the attorney works more or less than the allotted time can vary significantly, as discussed, below. 

Benefits of a Fractional General Counsel

  The benefit of a fractional general counsel versus a full-time in-house counsel is obviously a lower cost both in terms of salary and associated benefits.  But, it also has advantages over other forms of outside counsel.  Typically, the fees are lower than the attorney’s standard hourly rate.  More importantly, the arrangement gives the client a predictable cost it can include in its budget.  This certainty benefits the attorney, as well, particularly for solo practitioners and members of small law firms.  As legal workflow is often cyclical, the certainty of income associated with a fractional general counsel arrangement helps to balance slow periods in the practice.    

  Many small business owners only seek the advice of their attorneys when a situation is critical, because when working with an outside attorney on an hourly rate, they think about how much it will cost every time they pick up the phone. By contrast, when working with a fractional general counsel, a certain amount of the attorney’s time is already reserved to the client.  This results in a much more collaborative relationship, in which the attorney becomes an integral member of the team and has a deeper understanding of the business. Over time, the attorney develops institutional knowledge about the company that fosters better legal advice. 

Issues to Consider

  Despite the many benefits of a fractional general counsel arrangement, there are several issues that should be considered before taking the leap.  First, estimating how many hours of legal services per week/month are needed can be difficult and different attorneys handle overages and shortages of those hours in different ways.  Some will roll over unused hours to the following term.  That model is essentially an agreement for pre-paid legal services.  Others take the view that the agreement requires the attorney to allocate a certain number of hours to be available to the client during that month, so the fee is earned whether the hours are used or not. 

  If the attorney works more than the allocated hours, they are often billed at an agreed hourly rate.  Alternatively, there may be a built-in buffer of ten percent, for example.  So, if the contract is for 20 hours per month, the fee would cover 18-22 hours of legal services.  If fewer than 18 hours were used, they would roll over to the following month and if more than 22 hours were used, they would be billed at the attorney’s hourly rate.  It is also a good idea to build into the agreement a periodic review of usage to determine whether it makes sense to increase or decrease the estimated need.

  This raises another issue to consider when deciding whether a fractional general counsel arrangement is a good fit; they usually require a commitment to a minimum term, such as; 12 months, 6 months, or at least 3 months.  This is because the purpose of the arrangement is to promote an attorney-client relationship that fosters a deeper understanding of the business.  If the client’s goal is simply to lower the cost of legal services for a specific, short-term project, the better approach is to negotiate a flat fee with the attorney.  Typically, if a client terminates a fractional general counsel arrangement before the minimum term, the fee structure will revert to the attorney’s standard hourly billing rate, which will become immediately due. 

  Regarding the types of legal services they will likely need under the fractional general counsel agreement, the client should carefully consider the expertise and experience of the attorney or firm.  As the name suggests, a “general counsel” has broad knowledge of a wide variety of legal issues a business needs.  But, there will likely be gaps that have to be filled with other attorneys.  The agreement should be clear about the fractional general counsel’s role in managing these outside attorneys.  Because of this issue, it may seem that a large firm would be the best candidate for the role, because with more attorneys there are likely to be fewer gaps.  There is a risk, though, of losing one of the primary benefits of a fractional general counsel, which is having a single attorney with a deep understanding of the business.  The bigger the firm involved, the more likely the attorney in charge of the representation will be out-of-touch with the actual work being performed by other, usually junior, attorneys. 

Who Should Consider a Fractional General Counsel?

  When is the right time for a brewery or distillery to consider a fractional general counsel?  While most small businesses can benefit from these arrangements, there are two stages when they can be particularly useful; at start-up and before a planned growth.  At the earliest stages of the business, there are a wide variety of legal needs, including; formation of the entity, creating operating agreements and other contracts, obtaining licenses and permits, registering trademarks, negotiating a lease or land purchase, etc.  Having an attorney that can handle and/or manage all of these areas can alleviate stress and allow the owner to focus on the many other issues requiring attention.  For first-time owners, there will also be many questions along the way.  Having an attorney who is on the team allows those questions to be answered without having to worry about getting a bill every time they pick up the phone.

  An established brewery or distillery that is entering a growth phase presents many of the same types of issues.  They may need to restructure the company or negotiate new leases or land purchases.  Changes will need to be made to their licenses and permits, etc. 

  Does this mean that companies falling in between start-up and expansion are not right for a fractional general counsel?  Absolutely not.  This is the stage when the deep understanding coming from a long-term relationship can really shine.  An attorney who is familiar with the business can more accurately audit existing contracts to assess any legal exposure or where improvements can be made.  If the business has registered trademarks, routine monitoring should be undertaken to ensure they are not being infringed by other companies.  Internal regulatory compliance audits can identify vulnerabilities before action is taken by the government.  In other words, the fractional general counsel can focus on more in-depth legal issues for the business once it is outside the frenetic start-up stage.

Conclusion

  Eventually, some breweries and distilleries may need to hire a full-time in-house general counsel.  Most will never get that big.  But, having an attorney who is deeply familiar with the business and can handle most of the company’s legal needs is a tremendous benefit.  Traditionally, outside attorneys are hired on an hourly or flat fee basis.  But, the fractional general counsel arrangement offers several advantages, including, lower fees, predictability of legal costs, and development of institutional knowledge in the business.

  Brian Kaider is the principal of KaiderLaw, a law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.

New Brewery, Winery or Distillery Start Up

a cozy winery

By: Kris Bohm: Distillery Now Consulting, LLC  

Starting up a new beverage alcohol business is hard. Whether making beer, wine, or spirits, the challenges are daunting and upfront costs are huge. No one takes the leap to start a new business knowing it will fail, but many of them will. Based on industry data, up to 40% of new beverage alcohol businesses fail. To create a successful business, there is a common question that arises during the planning phase of launching a new beverage alcohol business.

What is the difference between a successful business and one that fails?

  This massively important question should be answered early on for a new business. In doing so, key strategies will be defined for the business from the beginning as it ventures forward. In the following paragraphs, you will find not only the answer to this question, but also a further analysis of successful business practices.

Defining Success: Let’s take a moment to define and measure success in a beverage alcohol business. This definition applies whether in a brewery, winery, or a distillery. These measurements of success will allow us to look closer at the internal workings of the business. As you look closer you will find common traits among nearly every business that is successful. For the sake of this article we will narrowly define success using the specific individual metrics of profitability, sustainability and velocity.

Profitability: The first key metric and measurement of success is profitability. A business must either be profitable, or at a minimum near self-sustaining, with revenue covering the cost of operating the business. Achieving profitability is one of the biggest metrics that defines success. Reaching profitability is essential, as every successful business must be self-sustaining after a certain amount of time. If a business is not profitable for too long of time, it is almost certain to fail.

Sustainability: A successful business must be sustainable in the capacity to produce the products it intends to sell. To clarify, we do not mean sustainability from an environmental impact or energy usage standpoint. Sustainability in this model means the ability to sustain and meet demand for products through growth. For a business model to be sustainable the equipment must have the capacity to grow and meet new demand as the company grows. The reason this metric is so essential is that most businesses must grow to reach profitability. If your business cannot sustain growth it most likely can not grow to become profitable.

Velocity: A business needs to have regular sales to provide consistent revenue for the business. Velocity is a measurement of how quickly your business is turning raw materials into finished goods and selling those goods. High velocity of product means there will be more consistent cash flow for the business. As product velocity increases it is followed by increases in revenue and often economies of scale. Both of which help a business become successful.

Tripod Business Model: Most businesses achieve some of these measures of success, but not too many will achieve them all. Among those who do succeed in meeting all three, there is a common thread that these successful businesses share. They will usually have three separate divisions that perform distinct business activities. These three divisions are production, sales, and marketing. This concept we will refer to as the tripod business model. If the top of a tripod is a successful beverage alcohol business as measured by our success metrics, then there almost always exists these three divisions in the business that make up equally important legs that hold up the business. If you remove any of the three legs, it only leaves the business on two unstable legs, and in time the business will fall and is likely to fail. It is easy to take this observation and call it as incorrect, but if one was to look closely at established successful beverage alcohol businesses they would find truth in this observation.

  When a sizable amount of time and resources are heavily invested into sales and marketing, the business has a strong probability that it will flourish. Often the business will flourish so strongly that production will often feel constrained in the resources it needs to meet the demand of the business. This is the correct way to invest time, financial resources and manpower to grow. If too many resources are dedicated to production in most instances production will have far too much capacity and there will not be enough demand for product to keep production running near its capacity.

  Now that we have defined some measures of success and the business practices that support them, let’s look closer at the three practices that hold up a successful beverage alcohol business, through the lens of a distillery.

SALES: Sales is essential and paramount to the success of nearly any business that has a product they sell. It can be the easier path for a new distillery to focus on their production with a plan to only sell spirits through a tasting room or cocktail lounge that is part of the distillery. A business plan like this can work, but it has a low ceiling that will often restrict a distillery from growing to a successful level. Real sales of considerable volume come from a distillery selling products in the same market as its competitors. This means working to sell spirits in liquor stores, bars, restaurants and other venues. In this market there is immense competition. The only way to compete in the larger spirits market is by investing into sales. This means having people working for your business who are full time employees whose job is to pull your spirits through the market and drive sales.

MARKETING: Marketing is the driving force that directly links to the success of sales. Marketing can come in a multitude of forms, some obvious and some not so obvious. Public facing platforms, such as social media, websites, billboards, magazines, newspapers, and influencers are all forms of marketing in action. The more a consumer or target consumer encounters a brand, the higher the chance that the consumer will buy your brand. Without an active marketing plan in place, consumers will quickly lose sight of your brand. A strong marketing plan and the person or people to continually implement, monitor, and drive a marketing plan is paramount to achieving success. Marketing is the key difference that will take a brand to the next level and keep pulling it up from there. Although it can be easy to not put an emphasis on channeling resources to marketing, it would be a mistake to do so. Many businesses have launched with little to no resources committed to marketing. Often these launches feel successful, but by our measurements are in fact not truly successful. Oftentimes the business will get going and be selling some amounts of product but in most instances a lack of marketing will cause a business to plateau quickly.

PRODUCTION: This practice of manufacturing is easy to give too much focus in the business of distilling. Whether you are distilling whiskey from scratch or bottling sourced spirits, the production part of this business is extremely important. While production is absolutely paramount to the business, this does not mean that the bulk of resources the business has should be invested into the production of spirits, nor the labor or equipment to produce the spirits. If the bulk of resources go towards production thus starving sales and marketing, there will invariably be a lack of sales to cover the costs of production. Now the manufacturing of distilled spirits is in no way inexpensive. Considerable resources have to go to production for it to function. We are trying to urge you to consider all resources the business has and properly allocate them to all three practices.

The battle between the practices: If you ask most folks who work in this industry, whether they work in sales, marketing, or production, they will all likely tell you that their business function is the most important to the success of the business. To be fair, all these folks can probably make a reasonably sound argument to support that statement. It is normal that there is some friction between all three practices because they all have unique functions and priorities that often do not align with one another. For a business to be successful, production, sales, and marketing must work together to achieve the goals of the business. When common goals are shared it is much easier for each part of the business to work in harmony.