Consumers’ increasing awareness of the advantages of nutrient-rich foods has prompted global food and beverage companies to begin enhancing their products with nutritional additives, leading to the creation of new products—and new categories of products—targeting consumers’ changing health and wellness needs.
On February 22, 2023, the U.S. Food and Drug Administration (“FDA” or “Agency”) released draft guidance on labeling of plant-based milk alternatives (“PDMA”). This draft guidance is meant to clarify the FDA’s current view on the naming of plant-based foods that are marketed and sold as alternatives for milk in accordance with Sections 403(a)(1) and 403(i)(1) of the Federal Food, Drug, and Cosmetic Act. The draft guidance also provides recommendations on the use of voluntary nutrient statements comparing plant-based milk to cow’s milk.
On November 9, 2022, the U.S. Alcohol and Tobacco Tax and Trade Bureau (“TTB” or “Agency”) announced that the Agency is considering updating the alcohol trade practice regulations for the first time in 20 years. The current trade practice regulations, codified at 27 C.F.R. parts 6 (tied house), 8 (exclusive outlets), 10 (commerical bribery) and 11 (consignment sales), prohibit certain practices that threaten the independence of retailers and/or give the industry members an unfair advantage over their competitors.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently proposed amendments to 27 CFR Part 4 that would allow winemakers to reference added distilled spirits on labels and in advertisements. Currently, wine labels and advertisements are prohibited from including statements indicating that a wine contains a distilled spirit unless the wine is required to bear a statement of composition which references the use of a distilled spirit. While this 1930’s prohibition sought to protect consumers from misinformation, the TTB acknowledges that as the wine industry has evolved, the regulation has become inconsistent with the TTB’s mission. Allowing this additional information provides manufacturers flexibility and empowers them to communicate with consumers more accurately about their wine products.
On May 26, 2022, the U.S. Food and Drug Administration (FDA) issued Warning Letters to four companies[1] concerning the illegal sale of unapproved animal drugs containing cannabidiol (CBD) intended for use in food-producing animals. These Warning Letters demonstrate the first time the FDA chose to focus on marketing CBD-containing products for use in food-producing animals, as opposed to pets, and the specific concerns related to such use. Food-producing animals, as defined by the FDA, include cattle (veal calves, beef cattle, and dairy cattle), swine, chickens, turkeys, and others (such as lambs).
Earlier this month, the U.S. Food and Drug Administration (“FDA”) completed guidance to help companies remove violative products from the market in a swift and effective manner. The guidance describes the precautionary steps companies should take to develop recall policies and procedures that include training, planning, and recordkeeping to reduce the amount of time a recalled product is exposed to the public.
The meat processing sector has been in the crosshairs of the federal government over that last several years due to increased consumer prices for meat products and complaints from farmers and ranchers. These complaints have rallied the Biden Administration to review and consider addressing these issues which are perceived to be caused by consolidation among meatpackers. Specifically, the Department of Justice (DOJ) and the U.S. Department of Agriculture (USDA) announced on January 3, 2022 their shared principles and commitments to use the Packers and Stockyards Act (P&S Act) and federal competition laws to address complaints regarding alleged anti-competitive behavior within the meatpacking industry. This announcement is in response to President Biden’s July 9, 2021 Executive Order on Promoting Competition in the American Economy, particularly in the meat and poultry processing sector, as well as USDA’s announcement in July 2021 to begin work to strengthen enforcement of the Packers and Stockyards Act (P&S Act).
In addition to the regulatory requirements imposed on beer labels, as discussed in the Anatomy of a Beer Label: Part I on COLAs, and the intellectual property protection offered by trademarks, as discussed in the Anatomy of a Beer Label: Part II, brewers may consider the value they can create through trade dress and
Aside from the regulatory requirements imposed on beer labels, as discussed in the Anatomy of a Beer Label: Part I post on COLAs, brewers should consider protecting the trademarks featured on their beer labels.
Trademarks
Since every brewer has a brand, consumers most commonly encounter brewers’ trademarks in the form of a brand name or
A beer label tells consumers more than just what the bottle or can contains (e.g., brewed hops, grain, yeast, and water). Labels inform consumers of important facts like the alcohol content by volume (ABV) and the net contents of the container, and may also provide insight on the flavor profile of the beer or the