alcoholic beverages

So reports The Indiana Lawyer, Judge: Wine shipping law unconstitutional. Here is a good portion of that article.


Taking Down Words has a post at Sour Grapes: Tinder Strikes Down Indiana's Latest Wine Shipment Law and The Indiana Law Blog posted the story under Ind. Decisions - More on: Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit.

I suppose we should expect an appeal to the Seventh Circuit Court of Appeals unless the Governor wants to save a bit of our tax money for a better purpose.

For those interested in wineries and the interstate shipping issues may want to look at the proposed Illinois law. Here is a description from The Chicago Tribune:

For those in the alcoholic beverage industry (including wineries and brewpubs) and consumers, the Alcohol and Tobacco Tax and Trade Bureau put forth some proposals for new regulations. Here is the summary:

Indiana's Alcohol Beverage & Tobacco Commission has some online resources that I want to highlight. First, the Licensing page - which is a collection of links to further information on the different types of licenses issued by the Commission.

As of today, the following contains all of the Commission's alcohol FAQ's (Frequently Asked Questions):

ALCOHOL FAQs

• How much does a permit cost?
• How can I stop an alcoholic beverage permit from being put into use in my neighborhood?
• Can I open my new business before my permit is issued, and while the application is pending?
• How do I learn the Alcoholic Beverage laws and regulations?
• What are the legal hours for dispensing alcoholic beverages?
• Is it illegal to dispense alcoholic beverages on certain days?
• What qualifies a beverage as "alcoholic?"
• Is it illegal to furnish alcoholic beverages to an intoxicated person?
• Are premises with an alcoholic beverage license required to serve food?
• How old do you have to be to serve alcoholic beverages?
• How old do you have to be to work at a permit premises?
• Are Server Training Programs mandatory?
• What is the penalty for serving alcoholic beverages to minors?
• What are some reasons a new permit may not be approved by a Local Board and the Commission?
• What are some reasons a renewal application may not be approved by a Local Board and the Commission?
• What are the penalities for impaired driving in Indiana?
• What excise district am I in?

Since I post news about business related blogs and with my continuing interest in the legal aspects of alcoholic beverages, I thought I might as well post a link to The Bruery Blog. The person writing this blog is written by the people running a new microbrewery. Fun to read and maybe educational and/or inspirational for those wanting to open their own microbrewery.

As Professor Bainbridge points out (and I forgot) in Prohibition Yesterday and Today Prohibition ended seventy-four years ago this past Wednesday.

Professor Bainbridge points out how we still try to prohibit what some people think are not good for us, but I want to point out how Prohibition still looms over the alcoholic beverage industry.

Absinthe made a big splash this past year. My attention having been on breweries, beer and cider, I never thought much about absinthe. Looking at the traffic to this blog, absinthe is the only topic attracting attention on the alcoholic beverage front.

The New York Times published A Liquor of Legend Makes a Comeback this past week. For those interested in the liquor only, I suggest clicking on the link now. Others might want to read the following, for it does a good job of describing how tortuous can be the process of getting a product away from the Treasury Department and to the public:

"The division of the Treasury Department that approves alcohol packaging sent back his label seven times, he said. They thought it looked too much like the British pound note. They wondered why it was called Absinthe Verte when their lab analysis said the liquid inside was amber. Mostly, it seemed to him, they didn’t like the monkey."

“I had the image of a spider monkey beating on a skull with femur bones,” Mr. Winters said. But he said that the Alcohol and Tobacco Tax and Trade Bureau thought the label “implied that there are hallucinogenic, mind-altering or psychotropic qualities” to the product.

“I said, ‘You get all that just from looking at a monkey?’”

His frustration came to a sudden end last Wednesday, when he learned the agency had finally granted approval to his St. George Absinthe Verte, the first American-made absinthe on the market in almost a century.

Federal law regulates the labels for alcoholic beverages and those regulations reflect a moralistic concern for the effects of alcoholic beverages on the public.

Another example of Prohibition's linger effect can be found in These farms' cash crop is bottled. Nowadays we think of Prohibition as a federal matter but the battleground was in the states before the passage of the Eighteenth Amendment.

Alcohol and Tobacco Tax and Trade Bureau has new regulations on viticultural areas for comment. The proposed regulations can be found by clicking here. The notice states the following for why these areas are now under review:

 For a number of reasons, TTB and Treasury believe that a
comprehensive review of the AVA program is warranted in order to
maintain the integrity of the program. First, we are concerned that
because the establishment of an AVA can limit the use of existing brand
names, approval of an AVA can have a deleterious effect on established
businesses, can limit competition, and can be used by petitioners to
adversely affect a competitor's business. We note in this regard that
where a conflict exists between a proposed AVA name and an established
brand name used on a wine label approved by TTB, a choice must be made
between competing commercial interests; we do not believe that, in the
context of the labeling provisions of the FAA Act, it is an appropriate
governmental role to make choices that undermine the commercial
interests of particular entities, if such choices can be avoided.
 In addition, we note that over the years there has been an increase
in the number of petitions for the establishment of new AVAs within
already existing AVAs. Because the idea behind the recognition of an
AVA is that it is a unique area for viticultural purposes with
reference to what is outside it, we believe that preserving the
integrity of the AVA program mandates clarifying the standards for AVAs
to foster greater scrutiny on the establishment of new AVAs within
existing AVAs.
 Finally, there is a need to explain and clarify the AVA petition
submission and review process and to clearly state the existing
authority to deny, and the grounds for denying, an AVA rulemaking
petition.

Remember that these regulations apply to Indiana as well as California.

I think this article from the Scottish Sunday Herald, It looks like Scotch ... but don't be fooled, provides a justification for our American regulation of alcoholic beverages:

Which leads me to believe that the Scottish/British laws must differ some from our American laws on labeling and definitions of what constitutes a certain type of alcoholic beverage.

I noticed A Befuddlement of Liquor Laws published by The New York Times. I have had no time to notice if Indiana's General Assembly has any legislation pending regarding interstate sales, but the Times article s provides a tantalizing glimpse of legislation elsewhere:

Of course, retailers are not calling for the end of regulation. They want regulated interstate shipping, as in Virginia, which now issues licenses to out-of-state retailers, who collect and pay sales tax to Virginia. Washington State is considering a similar bill, which would permit consumers to make legal purchases from an out-of-state retailer.

“It’s very difficult if not impossible to enforce compliance off the Internet,” said Rick Garza, deputy director of the Washington Liquor Control Board. “We know it happens, so creating a license for it, and permits and requirements is probably the best course, rather than ignoring it.”

Checking in at Wineries of Indiana shows nothing about any new legislation.

New Day Meadery of Elwood has a page for its direct shipping customers here. I did not have time to check on how other Indiana wineries handle direct shipping on their web pages.

For those wanting more on direct shipping will want to read ShipCompliant Blog ShipCompliant: Wine Shipping Blog.

Thanks to the Indiana Law Blog for pointing me to the Wine Spectator's article Indiana and Oregon Change Laws on Direct-to-Consumer Wine Shipments. The article has this to say about the future prospects for Indiana's law:

Because the judge focused on those two particular elements of Indiana's law, the state's existing direct-shipping rules remain intact. So long as the wineries are willing to ship and the courier services such as FedEx and UPS are willing to deliver, direct wine shipments to Indiana residents can commence. Unfortunately, however, Indiana consumers can't count their chickens just yet. Since the law is written to limit individual households to 24 cases per year rather than the wineries themselves, the wineries have no way of knowing if they'll be sending, say, the 25th case to a particular Indiana resident, and therefore violating the law. It's a risk some wineries are willing to take—but not all of them.

"Right now we are not shipping but are informing our Indiana wine lovers that we need their help to fix poor legislation," said Dennis Cakebread, director of marketing for Cakebread Cellars in Napa, Calif.

Despite that remaining barrier in Indiana, the state's wine wholesalers are unhappy with the decision. "We think the judge erred," said Jim Purucker, executive director of the Wine & Spirits Wholesalers of Indiana. "We think the legislature has the right to regulate alcohol under the 21st Amendment, and it's unfortunate that the legislature tried to do their best to … treat everybody equally, but I guess that didn't satisfy the judge. There are other places around the country where the face-to-face provision has been upheld. We would hope that on appeal his decision would be overturned."

Whether such an appeal will be filed, however, remains to be seen. "We're evaluating what we're going to do. A determination hasn't been made yet," Purucker said. Part of the reason may be, as Tanford pointed out, that if the state does not appeal a decision in which it was involved, a private third party, the wholesalers' association in this case, usually lacks the grounds to do so.

They’ll also face formidable opposition. In the months leading up the court decision, a group of Indiana consumers, led by Indiana resident Allen Dale Olson, formed an advocacy group called VinSense to fight the state's shipping laws. The only other state to see a group of consumers unite in protest of its direct-shipping laws was Michigan, one of the two states at the center of the 2005 Supreme Court decision.

VinSense has a website here. Do check it out.

Yesterday, the Alcohol and Tobacco Tax and Trade Bureau put into effect a new rule on authorized materials and processes for wine. You can find the full text of the rule here but this is the summary:

I try to keep an eye on alcoholic beverage news. I find it odd that most of that news comes out on the food pages rather than the business pages of most newspapers. Some newspapers even use the strangest (strange as in I am just awake and without enough caffeine to do much more than ask a question that I cannot repeat here and still sound both professional and PG) headlines. This headline comes from today's Washington Post: A Forbidden Fairy Makes a Comeback. It is about absinthe and here is an excerpt:

Basically, it boils down to chemistry. According to the Treasury Department's Alcohol and Tobacco Tax and Trade Bureau, U.S. law prohibits absinthe that contains over 10 parts per million of thujone, the active ingredient in wormwood. Wormwood is the plant that makes absinthe absinthe -- with its mythic tales of hallucination and belle epoque debauchery.

But here's the thing: Just about all absinthe has less than 10 parts per million of thujone and perhaps always did. The ban existed mainly because there had been no way to prove otherwise. Until now. In fact, New Orleans-born chemist Ted Breaux, creator of the new Lucid absinthe, has used modern technology to test bottles from the late 19th century to show that properly made absinthe contained very little thujone.

The Tax and Trade Bureau has done similar tests. "There are currently four absinthe products that we've tested and we're allowing in the marketplace," spokesman Art Resnick says. They are Lucid, Green Moon from France, and two versions of the brand Kubler from Switzerland.

I find more interesting how technology recreates an industry. Absinthe got itself banned for being dangerous. Actually for being very, very dangerous. Better chemistry shows the drink was not necessarily dangerous. The article mentions historians thinking that poorly made absinthe caused the problem. I take from that statement, that poor regulation of the makers helped create the problems. I might be influenced here by the talk on MSNBC of the dangerous Chinese toys.