July 09, 2014
“Ready-to-drink” alcoholic beverage categories are continuing to boom. Variously known as flavored malt beverages (FMBs), alcopops, progressive adult beverages (PABs) and ready-to-drink cocktails (RTDs), all sorts of flavors are being added to all sorts of products to create new taste sensations. Despite RTDs generally suffering some decline after Four Loko triggered state bans on adding caffeine to alcoholic beverages (covered here, here, here, here, and here), the category has well and truly picked up again in recent times.
If you are looking to produce a flavored product, we have put some tips together to keep in mind.
One of the key things under federal law to be aware of with FMBs is that most of the alcohol must come from the malt beverage base. If the product is below 6% alcohol, at least half of the alcohol must come from the production of the beverage itself and cannot come from nonbeverage items like flavorings (which often contain high alcohol levels). Above 6%, no more than 1.5% of the alcohol can be from nonbeverage ingredients.
For wine-based products, an important factor to keep in mind is to make sure that your formula leaves you with a product that you can sell in grocery stores in states that do not allow them to sell wine. In New York, for example, a wine product that can be sold in grocery stores must meet a strict definition which includes that it must be below 6% alcohol, and it must contain juice and carbon dioxide. If you can meet the definition, you fall outside price posting requirements in the state, but you still have to register the brand there. Similarly, in a state like New York, you should be aware that a distilled spirits based RTD, even if below 6% or 7% alcohol, can’t be sold at grocery, convenience and pharmacy type stores where most low alcohol products are sold.
It is important to know about the various regulatory agencies that monitor the labeling of alcoholic beverages. FMBs and wine coolers, depending on their alcohol content, could fall under the regulation of the Food and Drug Administration (FDA), the Alcohol and Tobacco Tax and Trade Bureau (TTB), or both. For example, labeling requirements for wines containing 7% or more alcohol are controlled by the TTB, but wine coolers under 7% alcohol are regulated by the FDA, because such products do not fall under the federal definition of wine. In addition, labeling requirements for beers not made from malted barley and hops are regulated by the FDA (such as sorghum beer), while malt based products and distilled spirit based products are subject principally to TTB requirements.
If your product falls under TTB’s labeling jurisdiction, you will need to get a Certificate of Label Approval (COLA) and you will likely need to get formula approval (see, for example, our previous blog on easing up of beer formula requirements here). If your product label is FDA regulated, you will have to include a nutrition facts statement and other information that would not be required under the TTB labeling regulations. Bear in mind that even products under FDA jurisdiction for labeling still may need TTB formula approval. You need to be careful about using any type of name which makes customers think that the product might be a spirit drink if it isn’t (including cocktail names like margarita or daiquiri).
In addition to formulation and labeling issues, recycling laws surrounding FMBs and similar products can be tricky. Ten states, including California (with its CalRecycle program), Connecticut, Hawaii, Iowa, Maine, Massachusetts, Michigan, New York, Oregon, and Vermont, have container recycling laws that apply to a variety of alcoholic beverages. The specific products that are subject to the laws vary from state to state, as do the container marking requirements. Wine- and spirits-based products may be subject to recycling laws, even in states where wine and distilled spirits are exempted.
Before producing a flavored malt beverage or other ready to drink beverage, be sure to familiarize yourself with the special rules that apply to these products. For questions about any of these products, contact one of the attorneys at Strike & Techel.
Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2014 · All Rights Reserved ·
April 12, 2011
Just when you thought the caffeinated alcoholic beverage saga was finally over, New York state senator Jeffrey Klein is keeping the saga alive. As a response to the ban on caffeinated alcoholic beverages that spread throughout the nation toward the end of 2010, the largest producer of such beverages, Phusion Projects, eliminated caffeine, guarana and taurine from its beverages. Senator Klein (D-Bronx/Westchester), chairman of the New York Senate Alcohol and Drug Abuse Committee, however, believes the products are still dangerous and being accessed and abused by minors. As a result, at the end of March he introduced a plan of action to decrease minors’ access to the beverages by creating a new defined term within the New York alcoholic beverage code, “Flavored Malt Beverage,” and requiring that such products falling under the new definition are only sold in New York liquor stores as opposed to convenience stores. Many phrases have been used to describe these beverages, from Progressive Adult Beverages (PABs), Flavored Alcoholic Beverages (FABs), Malternatives, Ready to Drinks (RTDs), and the catchy Alcopops. But if the new bill, S4221-2011 becomes law, it appears that FMB will become the beverages’ official title in New York. The proposed definition of FMBs set forth in S4221-2011 is:
“’Flavored Malt Beverage’ means and includes any alcoholic beverage of any name or description that is manufactured from malt, wholly or in part, or from any substitute therefore including, but not limited to, liquor, spirit or wine; and containing more than six per centum alcohol by volume and more than one per centum sugar by volume which is manufactured with the addition of flavorings or other ingredients including, but not limited to, fruit, fruit juice or fruit flavor, or herbs, nuts or spices (including, but not limited to, chocolate, licorice or vanilla, or stimulants (including, but not limited to caffeine, guarana, ginsing (sp), taurine or wormwood oil). The authority may, pursuant to subdivision fifteen of section seventeen of this chapter, further defined those alcoholic beverages that shall be included within such term. Provided that, Flavored Malt Beverages shall not be deemed to be beer, cider or a wine product.”
Senator Klein also introduced S3889-2011 to ban the sale of caffeinated alcoholic beverages, which a convenience store in Klein’s district was apparently still selling despite Phusion Project’s statement that is was no longer making the product and the agreement between New York’s largest distributors and the State Liquor Authority to stop selling the beverages to retailers. The ban in S3889-2011 also comes by way of creating a new defined term within the New York alcoholic beverage code: Caffeinated or Stimulant-Enhanced Alcoholic Beverage. The term would include alcoholic beverages with more than 5% but not more than 15% alcohol by volume that also has more than six milligrams per ounce of caffeine or other stimulant that has an effect equivalent to that of caffeine. The maximum 15% alcohol by volume in the definition is designed to exempt coffee-based liquors from the definition. The bill’s summary explains the logic for this distinction:
“The differentiation between these coffee based products and CABs is that caffeine is naturally occurring in coffee and herbs such as guarana, ginseng, taurine or wormwood oil are not added. Further, these products are sold exclusively in liquor stores, which can only be patronized by adults. In addition, coffee-based alcoholic beverages tend to be mixed with milk or cream, which makes them heavier and less vulnerable for over consumption. However, CABs tend to be lighter in body, sweeter to mask its alcohol content, and hence, are more easily subject to over consumption and abuse.”
We will continue to follow the progress of the two New York bills and are interested to see if additional states follow suit.
Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2010-2011 · All Rights Reserved ·
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