Transcript Hot Topics in Alcohol Beverage Law and Regulation

NABCA Legal Symposium
James M. Goldberg

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 midApril with report (4th study) due in spring, 2013

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

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

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 (?)

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

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

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

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