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Hot Topics in Alcohol Beverage Law and Regulation

Hot Topics in Alcohol Beverage Law and Regulation. NABCA Legal Symposium James M. Goldberg. Federal Trade Commission. Alcohol beverage advertising self-regulation study First study in 1999 2008 report found high levels of compliance with voluntary placement standards

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Hot Topics in Alcohol Beverage Law and Regulation

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  1. Hot Topics in Alcohol Beverage Law and Regulation NABCA Legal Symposium James M. Goldberg

  2. Federal Trade Commission • Alcohol beverage advertising self-regulation study • First study in 1999 • 2008 report found high levels of compliance with voluntary placement standards • Orders requesting information should issue in mid-April with report (4th study) due in spring, 2013

  3. Federal Trade Commission • Consent order with Phusion Products (Four Loko) • New labels required, can redesign to allow resealing • More than 200 opposing comments received • About a dozen supporting comments • Facebook privacy settlement garnered less than 60 comments • Final decision expected in May/June

  4. Alcohol, Tobacco and Firearms Tax and Trade Bureau • TTB reorganization? • Move all to IRS? • Split between IRS and FDA? • Fiscal 2013 budget • Spending cut about 3%, staff reduced from 496 to 482 • Budget Appendix page 1119 • Transfers responsibility for criminal investigations from TTB to IRS

  5. Alcohol, Tobacco and Firearms Tax and Trade Bureau • On-premises infused spirits products • 2010 e-mail to MD Comptroller’s office • Infusion appears to be “processing” • Past cases generally limit mixing to 24 hours prior to consumption • “Particular circumstances” test • No “significant jeopardy” to FET revenue • More formal ruling expected soon (?)

  6. State Litigation • Project Extra Mile v. Nebraska Liquor Control Commission • Nebraska Supreme Court March 2, 2012 • Commission exceeded authority by classifying and taxing FMB’s as beer, since law plainly defines spirits as beverages that contain alcohol obtained by distillation • LB 824 would classify FMB’s as malt beverages

  7. State Litigation • Southern Wine and Spirits of America v. Division of Alcohol and Tobacco Control • USDC WD Mo. • Challenge to state law requiring spirits wholesalers to be incorporated in MO and have at least 60% of shareholders be bona fide residents of MO for at least three years

  8. Federal Litigation • Lorillard, Inc. v. U.S. Food and Drug Administration • USDC DC opinion February 29, 2012 • Invalidates effort to force tobacco manufacturers to include graphic, anti-smoking warnings on all cigarette packages and advertising • Not ordinary disclosure requirements of the kind previously upheld by Scotus

  9. Federal Litigation • American Beverage Association v. Snyder • USCA Sixth Circuit • Challenge to MI beverage container deposit law requiring interstate manufacturers to produce containers uniquely branded for sale in state and criminalizes sale of such MI-only containers in other states lacking a “substantially similar” law • District court had upheld the statute

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