The New York State Senate has passed legislation (S7217A) that would ban the sale of powdered alcohol, a concentrated alcoholic beverage deemed “unnecessary” and “dangerous” by the bill’s sponsor, Sen. Joseph Griffo (R-Rome). One such product, Lipsmark, LLC’s Palcohol®, was approved in April by the Alcohol and Tobacco Tax and Trade Bureau (TTB), but the agency later reversed its approval, stating that it had been made in “error.” Lipsmark has reportedly resubmitted its application for approval. If the bill is passed by the New York State Assembly, powdered alcohol would be banned in the state even if TTB approves it to be marketed in the United States. “Should the [Food and Drug Administration] reverse its decision again and approve it, we should have a law in place to prohibit the sale of this product in New York. I hope the Assembly will join us in passing this legislation,” said Griffo.…
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A California court has approved the settlement of claims that alcohol beverage makers allegedly sold their products without providing warnings required under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Bonilla v. Anheuser-Busch, LLC, No. BC537188 (Cal. Super. Ct., Los Angeles Cty., judgment entered May 30, 2014). Additional details about the claims appear in issue 515 of this Update. Under the agreement, the companies, denying that the signage they already provided to retailers failed to comply with Prop. 65, will (i) obtain a list of all current licensees from the state Department of Alcoholic Beverage Control; (ii) mail or email to every licensee “Proposition 65 Signage”; (iii) mail or email a letter providing contact information for ordering additional signage free of charge, informing licensees of their posting obligations and describing regulatory requirements pertaining to placement; and (iv) repeat these actions every five years. They also…
A multidistrict litigation (MDL) court in Ohio has dismissed with prejudice six putative class actions involving plaintiffs from California, Colorado, Florida, New Jersey, Ohio, Pennsylvania, and Texas, alleging that Anheuser-Busch “routinely and intentionally adds extra water to its finished product to produce malt beverages that ‘consistently have significantly lower alcohol content than the percentages displayed on its labels.’” In re Anheuser-Busch Beer Labeling, Mktg. & Sales Practices Litig., MDL No. 13-2448 (N.D. Ohio, order entered June 2, 2014). Additional details about the litigation and the order consolidating the cases appear in issues 473 and 487 of this Update. Federal regulations allow malt beverages containing 0.5 percent or more alcohol by volume a tolerance of 0.3 percent in the alcohol content, “either above or below the stated percentage of alcohol,” and the affected jurisdictions have adopted or refer to these regulations in their statutes and regulations. The defendant argued in its motion…
The U.K. Advertising Standards Authority has reversed an earlier decision upholding two complaints alleging that Heineken UK Ltd.’s print and TV advertisements gave the impression that its Kronenbourg 1664 beer was brewed in France and made primarily from French hops, despite text disclaimers stating that the product was “Brewed in the UK.” According to ASA, Heineken argued that Kronenbourg 1664 “could correctly and reasonably be described as a ‘French beer’ because of its heritage, the origin of its recipe and the use of the Strisselspalt hop, as well as its ownership and the yeast type used.” In particular, the company noted that the aromatic Strisselspalt hop— though not the sole hop used in the beer—was the key ingredient in creating the beer’s final character and taste, attributes that could not be captured “from a simple calculation of the proportion in which [the Strisselspalt hop] featured in the recipe.” In its…
The World Health Organization (WHO) has released a report on the purported harmful effects of alcohol in 194 WHO member states. The agency attributes 3.3 million deaths in 2012 to the harmful use of alcohol, and it found that the 38.3 percent of the world’s population that drinks alcohol consumes an average of 17 liters of pure alcohol each year. The report highlighted the need for WHO member states to take action in the form of national alcohol policies, awareness-raising activities and health services for prevention and treatment of alcohol related diseases. WHO attributes higher risk of developing more than 200 diseases to alcohol use and further notes that harmful use can lead to higher susceptibility to infectious diseases such as tuberculosis and pneumonia. “More needs to be done to protect populations from the negative health consequences of alcohol consumption,” said WHO Assistant Director General for Noncommunicable Diseases and Mental…
Texas has filed a motion to intervene in Alamo Beer Co. LLC’s trademark infringement suit against Old 300 Brewing LLC, asserting that the state has the rights to the “Alamo” mark. Alamo Beer Co. LLC v. Old 300 Brewing LLC, No. 14-285 (W.D. Tex., motion filed April 28, 2014). Filed in March 2014, Alamo Beer’s original complaint alleged that Old 300 Brewing (doing business as Texian Brewing Co.) infringed on its mark by using the silhouette of the Alamo on Texian beer labels, which image Alamo Beer has used and federally registered as a trademark for beer labeling since 1997. Texas argues that it has registered and common law rights to the use of the Alamo Mission’s likeness in commerce. In 2013, the state began registering the Alamo silhouette in a variety of categories, including blankets, apparel, jewelry, leather goods, digital media, packaged foods, and museum services. In the category…
Dubbing powdered alcohol “the Kool-Aid of teen binge drinking,” Sen. Charles Schumer (D-N.Y.) has called on the U.S. Food and Drug Administration (FDA) to supersede the Alcohol and Tobacco Tax and Trade Bureau (TTB) by banning a product known as Palcohol® before it reaches store shelves. Created by Lipsmark, LLC, Palcohol® first attracted media attention when TTB granted and then temporarily rescinded approval for its labels, citing a technical issue with the amount of powdered alcohol in each package. Additional details about Palcohol® appear in Issue 521 of this Update. Now Schumer has written a May 5, 2014, letter to FDA Commissioner Margaret Hamburg, asking the agency to work with TTB “to assess the potential public health concerns that arise by combining this product with food and beverages.” Pointing to a 1976 district court ruling and a memorandum of understanding that saddled both agencies with the responsibility to regulate alcohol,…
After the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) reportedly granted and then rescinded labeling approval for a powdered alcohol product created by Lipsmark LLC, the company has fielded a number of consumer and media questions about Palcohol’s® marketing, safety and availability. Created by wine critic Mark Phillips, Palcohol® is described as “a powder version of vodka, rum and four cocktails” meant to be mixed with water or other liquids prior to consumption. Although it received approval for the new product “some time ago,” the manufacturer was apparently “caught off guard by [TTB] making some of our approved labels public which we now know is standard procedure.” According to the product website, the company has since surrendered its TTB-approved labels with the intention of revising and resubmitting them for final authorization. In the interim, however, the media attention has prompted Lipsmark to address concerns over “humorous and edgy”…
The U.K. Advertising Standards Authority (ASA) has upheld a complaint claiming that alcohol ads were shown during YouTube videos intended for children. According to the agency, a series of children’s nursery rhyme videos featured advertisements for liquors sold by Wm Morrison Supermarkets PLC (Morrisons) even though both the company and YouTube took action “to prevent alcohol content from being served during content that was family-friendly.” Despite these precautions and YouTube’s warning that users should not access accounts “that declared they were over 18 years of age if they were watching YouTube with a minor,” ASA ruled that the ads in question violated CAP Code rules governing social responsibility, children and alcohol. “The ASA noted that both Morrisons and YouTube had processes in place that were intended to ensure that ads for alcohol were not directed at those under 18 years of age,” it explained. “However, we considered that the YouTube video…
The U.K. Advertising Standards Authority (ASA) has reportedly dismissed a complaint about a controversial National Health Service advertisement showing a tumor growing in the bottom of a beer glass with the tag line “the more often you drink, the more you increase your risk of developing cancer.” Promoted by the alcohol awareness charity Balance and shown in a section of England reported to have the country’s highest rates of alcohol related health problems, the advertisement depicts a man preparing a meal and pouring a beer into a glass. As the man drinks the beer, a tumor appears to slowly grow at the bottom of the glass and slide toward his mouth. A voice-over then states, “The World Health Organization classifies alcohol as a group one carcinogen … The more you drink and the more often you drink, the more you increase your risk of developing cancer.” Calling the ad “misleading and irresponsible,…
