The Fourth Circuit Court of Appeals has turned aside a First Amendment challenge to a state law restricting advertisements for alcoholic beverages in college student publications. Educ. Media Co. v. Swecker, No. 08-1798 (4th Cir., corrected decision filed April 19, 2010). The restrictions at issue did not allow advertisements for alcohol in any college publication distributed primarily to students younger than 21, but did allow dining establishment advertisements in those publications to refer to alcohol. The student-run newspapers challenging the restrictions claimed that they were losing tens of thousands of dollars in ad revenues annually because of the restrictions, which they contend do not advance the government’s interest in combating underage drinking. The court found sufficient evidence in the record to link decreasing demand for alcohol by college students with the advertising restrictions, citing in particular the inimitable role that student publications play on campus and “the fact that alcohol…
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According to a news source, a putative class action has been filed against E&J Gallo Winery alleging that it falsely labeled and sold its Red Bicyclette® wine as Pinot Noir when the wine was “illegally cut with cheaper Syrah and Merlot grapes.” The action, reportedly filed in Los Angeles Superior Court, follows news that wine makers in France were sentenced for selling the cheaper wine to the company as pinot noir. Additional details about the French scam appear in issue 338 of this Update. Meanwhile, the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) has reportedly been investigating the matter with French authorities and may also take action against U.S. wine importers. The bureau was quoted as saying, “TTB is waiting for an official translation of the court documents and has begun investigations to determine the appropriate course of action to take regarding the American importers of these mislabeled…
A court in Carcassonne, France, has reportedly found French winemakers and traders guilty of deliberately and repeatedly mislabeling wine as a more expensive grape variety to get a better price from E. & J. Gallo under its Red Bicyclette® brand. French customs officials apparently discovered the swindle when they found that the amount of “pinot noir” sold to Gallo far exceeded what the region produced. According to a news source, the scam more than doubled the miscreants’ profits, which totaled some €7 million for 18 million bottles. The fines imposed ranged from US$2,050 to US$247,050, and the suspended jail sentences ranged from one to six months. The judge was quoted as saying, “The scale of the fraud caused severe damage for the wines of the Languedoc for which the United States is an important outlet.” A defense attorney reportedly said that no American customers complained about the fraud. See BBC News,…
A recent study has reportedly “confirmed that beer is a very rich source of silicon,” a dietary nutrient that increases bone mineral density. Troy Casey and Charles Bamforth, “Silicon in Beer and Brewing,” Journal of the Science of Food and Agriculture, February 2010. According to researchers with the University of California’s Department of Food Science and Technology, pale ales made from barley grist contained more silicon than non-alcoholic beers, light lagers and wheat beers, “likely because of the high levels of silica in the retained husk of barley.” Of the commercial beers sampled, silicon content apparently ranged from 6.4 to 56.5 milligrams per liter. “During brewing the vast majority of the silicon remains with the spent grains; however, aggressive treatment during wort production in the brewhouse leads to increased extraction of silicon into wort and much of this survives into the beer,” the study concludes. See Reuters, February 9, 2010.
New York Assemblyman Nelson Castro (D-86) has proposed an amendment (A09754) to the state’s agriculture and markets law that would require a warning label on all energy drinks. Citing “serious health risks including heart attack, stroke and even heart disease,” the provision calls for product warnings to appear in a black box and in letters “not less than eight point type.” It would also impose civil liability fines of $1,000 per violation. But unlike a similar proposal in Kentucky that reportedly focuses on caffeine content, the New York law defines an energy drink as containing “a combination of some or all of the following ingredients: sugar, methylkanthines, caffeine, vitamin E, herbs, guarana, açai, taurine, ginseng, maltodextrin, inositol, carnitine, creatine, glucuro-nolactone and ginkgo biloba.” This definition would exclude coffee, according to a January 26, 2010, article in Law360, which noted that the American Beverage Association has questioned the practicality of enforcing…
The First Circuit Court of Appeals has upheld an injunction against the enforcement of a Massachusetts law that regulated wine shipments in a manner that changed “the competitive balance between in-state and out-of-state wineries in a way that benefits Massachusetts wineries and significantly burdens out-of-state wineries.” Family Winemakers of Cal. v. Jenkins, No. 09-1169 (1st Cir., decided January 14, 2010). The statute at issue gave small wineries (those producing 30,000 gallons or less of grape wine annually) the most options for selling to consumers, either by direct shipment or through wholesalers and retailers. According to the court, most Massachusetts wineries are small wineries. Large wineries could sell either through wholesalers or by applying for a special license to ship directly to consumers; they could not do both. Apparently, Massachusetts has no large wineries. A group of California wineries and Massachusetts residents challenged the law, claiming it violated the Commerce Clause by effectively…
A Temple University study challenges the sobering effects of caffeine by asserting that mixing caffeine and alcohol could “lead to poor decisions with disastrous outcomes.” Danielle Gulick and Thomas J. Gould, “Effects of Ethanol and Caffeine on Behavior in C57BL/6 in the Plus-Maze Discriminative Avoidance Task,” Behavioral Neuroscience (2009). The authors observed mice in a maze that had been given ethanol (pure alcohol) at levels known to induce intoxication, doses of caffeine the equivalent of one up to six or eight cups of coffee for humans, a combination of the two, or neither. They tested the animals’ (i) “ability to learn which part of the maze to avoid after exposure to a bright light or sound”; (ii) “anxiety, reflected by time spent exploring the maze’s open areas”; and (iii) “general locomotion.” According to a December 7, 2009, press release from the American Psychological Association, which publishes Behavioral Neuroscience, the study revealed…
Francis Ford Coppola Presents, LLC has filed a complaint in a California court against a company that makes corks, screw caps, bottles, and other packaging, alleging that defects in the bottles and screw caps purchased for the winery’s Encyclopedia® collection of wines caused the degradation or destruction of 55,000 cases of wine. Francis Ford Coppola Presents, LLC v. Vinocor USA, Inc., No. 26-50585 (Cal. Super. Ct., Napa Cty., filed November 23, 2009). The winery alleges breach of contract, the implied covenant of good faith and fair dealing and the implied warranty of fitness; fraud in the inducement; negligent misrepresentation; negligence; and “for money had and received.” According to the complaint, the affected wine collection “was crafted and designed to be a collection of wines aimed at educating consumers on understanding how geography, history, food and religion, to name a few, all contribute to the making and enjoyment of wine. In…
Concluding that alcohol ads are viewed more than 18,000 times by public school student transit passengers during an average weekday, a new study recommends that Boston’s public transit system be prohibited from displaying alcohol advertisements. Justin Nyborn, et. al, “Alcohol Advertising on Boston’s Massachusetts Bay Transportation Authority (MBTA) Transit System: An Assessment of Youths’ and Adults’ Exposure,” American Journal of Public Health (November 2009). Some 9,600 students aged 11-18 use the transit system daily. Michael Siegel, a professor at Boston University School of Public Health who co-authored the study, said, “By allowing alcohol advertising on the T, the state is not only allowing alcohol companies to bombard our kids with enticing advertisements, it is also allowing these companies to successfully recruit new drinkers among underage youths in the Commonwealth.” Siegel’s primary research interest is in tobacco control. See BU School of Public Health: The Insider, November 4, 2009. In a…
Responding to a request from a coalition of state attorneys general, the Food and Drug Administration (FDA) has called on the makers of alcoholic energy drinks to provide information and data showing their use of caffeine in alcoholic beverages is permissible under the law. The letter, sent to nearly 30 companies, explains what the law requires in terms of food additives: the additives must meet generally recognized as safe (GRAS) standards or be given pre-market approval by the agency. According to FDA, caffeine is GRAS only when used in cola-type beverages. The letters were issued on November 13, 2009, and the companies were given 30 days to provide the requested information. In late September, the co-chairs of the National Association of Attorneys General Youth Access to Alcohol Committee called for the agency to pull the products from the market, contending that “the combination of caffeine and alcohol in AEDs [alcoholic…
