Using a grape variety on an American wine label is not mandatory, but many winemakers choose to do so for several reasons, such as perception of quality to the consumer. Using or naming the variety on the wine label may also convey a better story about what is in the bottle.
There are a number of federal regulations that govern grape varieties, ranging from the percentage of grapes that must be used in a wine to what specific varieties can be used on an American wine label. This article discusses some of the regulatory concerns on using grape varieties in American wines.
TTB regulations require a wine label have a class/type designation, including (but not limited to) “Red Wine,” “Red Table Wine,” “White Wine,” or “Rosé Wine.” Instead of using these terms as the type designation on a wine label, the grape variety can actually function as the wine’s type designation when the variety is named on the label. A single variety can be used as the type designation if not less than 75% of the wine in the container derived from the grapes of the variety (with some exceptions, such as Vitis labrusca varieties). 27 CFR 4.23(b). Further, the wine must be labeled with an appellation of origin and the entire 75% of the grapes must have been grown within the appellation. 27 CFR 4.23(a)–(b).
Environmentally-conscious and corkscrew-phobic wine lovers alike will be thrilled to hear that TTB issued a ruling on March 11, 2014, allowing the filling of wine growlers by TTB-licensed tax-paid wine bottling houses (“TPWBH”). The ruling is in response to a new Washington state law allowing state-licensed wineries to sell wine off-site in kegs or “sanitary containers” (i.e., growlers) for off-premise consumption. Oregon passed a similar law in April 2013.
These laws are particularly helpful to wineries that operate both a production facility and a separate tasting room, allowing them to fill growlers for off-premise consumption at either location. The TTB ruling is somewhat less helpful to wine retailers, requiring that they go to the extra trouble of becoming TPWBH-licensed and comply with label and recordkeeping requirements.
Some wine retailers complain that it is unfair to not allow non-TPBH wine shops to sell growler fills to-go, since beer shops currently enjoy that privilege.
Not that I read the PETA stuff every day, but I could not resist when I stumbled on PETA’s article entitled, “Is Wine Vegan?” It makes the point that:
The majority of people are unaware that wine, although made from grapes, may have been made using animal-derived products. During the winemaking process, the liquid is filtered through substances called “fining agents.” This process is used to remove protein, yeast, cloudiness, “off” flavors and colorings, and other organic particles. Popular animal-derived fining agents used in the production of wine include blood and bone marrow, casein (milk protein), chitin (fiber from crustacean shells), egg albumen (derived from egg whites), fish oil, gelatin (protein from boiling animal parts), and isinglass (gelatin from fish bladder membranes). Thankfully, there are several common fining agents that are animal-friendly and used to make vegan wine. Carbon, bentonite clay, limestone, kaolin clay, plant casein, silica gel, and vegetable plaques are all suitable alternatives.
For those who would prefer not to torment an animal in the course of pouring a glass of wine, The Vegan Wine Guide already lists more than 400 wines. The Vegan Vine seems like a good example. As I flipped through a few of the 400, I was not surprised to see that few if any make direct claims that the wine qualifies as “vegan.” After all, TTB is not known for being footloose and fancy-free about various claims. Foursight Wines has said:
In June of last year, the Supreme Court decided a rather revolutionary case for the food industry: Pom Wonderful LLC v. The Coca-Cola Company. The case, which was commenced by Pom Wonderful, questioned the label of a competitor’s product, Coca-Cola’s Minute Maid Blueberry Pomegranate juice. The Minute Maid label contained the words “blueberry pomegranate” in greater predominance than other text on the label that indicated the juice was a blend of five fruit juices. In actuality, the Minute Maid Pomegranate Blueberry juice contained 0.3% pomegranate juice and 0.2% blueberry juice, whereas 99.4% of the blend contained apple and grape juice (the remaining 0.1% was raspberry juice). See Pom Wonderful LLC v. The Coca-Cola Company, 573 U.S. ___ (2014), 134 S. Ct. 2228. While this label may seem misleading on its face, Coca-Cola argued its labeling was actually in compliance with FDA rules and regulations. Id. Pom Wonderful, on the other hand, alleged that the use of the label by Coca-Cola was misleading and deceptive under § 43 of the Lanham Act, which allows a competitor to sue another provided it asserts unfair competition from false or misleading product descriptions.
Joseph Barton, Applicant, sought to register the mark (in standard characters) BARTON FAMILY on the Principal Register in international class 33 “wine; wines.” See In re Thomas Barton, Serial No. 85826787 (Dec. 11, 2014) [not precedential]. The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), asserting that there was a likelihood to cause confusion with the registered mark THOMAS BARTON for alcohol beverages, namely wine, in International Class 33 and with the registered mark BARTON & GUESTIER in typeset letters for wine in International Class 33. Id. at 1–2. (The two registered marks are owned by the same entity.) Applicant appealed and filed a request for reconsideration, which was denied by the Examining Attorney and thus the appeal resumed.
In its opinion, the Trademark Trial and Appeal Board (“the Board”) noted that the Applicant’s mark was more similar to the mark THOMAS BARTON than to BARTON & GUSTIER because the latter mark contained the term “GUSTIER,” which the Board found to be a more distinctive point of difference. Thus, the Board restricted its analysis to Applicant’s mark in relation to THOMAS BARTON (i.e., if the Board were to find that confusion existed between said marks, the Board recognized there was no need to examine whether the same existed between BARTON FAMILY and BARTON & GUSTIER).
One of the major functions of the TTB, the federal agency that has primary jurisdiction over alcohol beverages in the U.S., is to collect federal excise taxes on alcohol beverages. As TTB more thoroughly explains on its website, excise tax rate depends on commodity type as well as product. See Tax and Fee Rates; see also Quick Reference Guide to Wine Excise Tax. For example, TTB’s current tax rates for alcohol are divided between beer, wine, and spirits and then subdivided into a hierarchy based on class/type (e.g., table wine, dessert wine, artificially carbonated wine, etc.).
(Note: There are exceptions, such as small domestic producer credit, to the above.)
One of the important distinctions, especially for wine tax purposes, is the division between table wine and dessert wine class/types. Often, clients will submit a label approval for a wine over 14% ABV and TTB will classify the product as “dessert wine,” even though the wine—for consumption purposes—is technically not a dessert wine. The agency’s reasoning pertains to the chart and tax rates above. Generally speaking, for tax purposes, a wine above 14% ABV will be classified as a “dessert wine” for class/type purposes and taxed at a higher rate than a wine with an ABV percentage at or below 14% ABV. The latter (i.e., the wine at or below 14% ABV) would fall into the “table wine” class/type and also be taxed at a lower tax rate per gallon or per 750 ML bottle.
Here is a good, and relevant, question. What happens if a wine label boasts the term, “ORGANIC,” or “CERTIFIED ORGANIC” but is neither organic nor certified as such? As organic products—including wines—become more popular among consumers, there is a greater risk of fraudulent use of the term “ORGANIC.” See, e.g., Is Your Organic Food A Fraud?; OverseasCompanies Fake Organic Certificates.
Last week, The Drinks Business reported that an Australian vineyard, Kings Court Vineyards in Victoria, was accused by the National Association for Sustainable Agriculture, Australia (“NASAA”) for falsely labeling its wines as “ORGANIC.” See Vineyard Caught Over False Organic Claims; see also Organic Chief: We Will Discredit Firms Who Claim False Certification. NASAA, the Australian associated responsible for certifying companies as organic, issued a statement that the certifier never certified Kings Court Vineyards. NASAA indicated that the association never approved Kings Court Vineyards as organic and, as such, the vineyard has been falsely labeling its wines. The association has since obtained an injunction from the Australian Federal Court against the vineyard, preventing the vineyard from labeling its produce as organic. NASAA recited its reasoning for pursuing action to include its desired to protect truth in labeling. In addition, the association noted that there are extremely high costs associated with certifying an operator, an expense that many companies undertake to proudly proclaim their product is organic. See, e.g., Vineyard Busted for Falsely Claiming Organic Status. Additionally, NASAA commented that:
New York is home to over four hundred wineries as of March 2014. See New York Wine and Grape Foundation: Wineries by County. While this number may not compete with the amount of wineries currently housed by California, it makes New York home to the greatest number of wineries on the East Coast. See North American Winery Total Passes 8,000. As of Year 2013, the state boasted wineries in 53 of its 62 counties (this number includes both traditional wineries and satellite stores or branch offices). See New York Wine and Grape Foundation: Wineries by County. This is a significant increase from 1976, or the year the New York State Farm Winery Act was passed. See id. (compare with fourteen wineries in nine counties, circa 1976; compare also with 125 wineries in 24 counties as of Year 2000).
In 2012 alone, New York State boasted that its wine industry had a state-wide economic impact of $4.8 billion. See, e.g., Economic Impact of Grapes, Grape Juice, and Wine: $4.8 Billion. Its nearest East Coast competitor, the state of Virginia, maintains that its wine industry had an economic impact of just under $750 million in Year 2010. See Virginia Wine Industry Jobs Grow by 50%; Economic Impact Doubles, New Study Finds.
While the aforesaid numbers speak considerably well of New York’s wine business, in an industry so highly regulated by federal, state, and local officials, one must not rely on numbers alone. The laws, rules, regulations, and state agencies must also be in favor of a growing industry, as well as support and cultivate development and expansion. That being said, there are a number of examples of how New York’s wine industry has significant backing from the state government, as well as from numerous private ventures.
Last year, I blogged several times about nutrition facts panels and ingredients statements in relation to wine and other TTB-regulated alcohol products. See A Regulatory Analysis: Nutrition Fact Panels and Ingredient Statements on Alcohol Beverages; Full Ingredients List to Appear on 2011 Ridge Vineyards Wine Label. As many know, for the majority of alcohol beverage products that fall within its labeling jurisdiction, the TTB does not require calorie counts, nutrition facts, or ingredients statements that are frequently seen on FDA-regulated food and beverage products. Such information is voluntary for TTB-regulated alcohol beverages.
Over the last few years, however, there’s been a trend in the amount of voluntary disclosure by producers of items like calories and ingredients. For example, last year Ridge Vineyards announced its 2011 vintage would feature a full disclosure of the wine’s ingredients as well as the actions followed to produce the wine. In other words, a food-styled ingredients list appeared on the labels of Ridge’s 2011 release. Ridge was not the first winery to release a full ingredients list on its wines, but Dave McIntyre speculated that Ridge’s ingredients statement might have a greater influence over the industry than other full disclosure labels (including those from Bonny Doon, as here and here, and Shinn Estate, as here and here). Finally, companies like Skinnygirl boast calorie counts on their back labels and entice the consumer to enjoy the product “without the guilt.”
Since then, the powerhouse MillerCoors very recently announced its adaptation of the first U.S. beer nutritional facts label on its Miller64 beer. See MillerCoors Adopts First U.S. Beer Nutritional Labeling. Scott Bussen, a marketing communications representative for MillerCoors, stated the company’s decision to include such on its Miller64 line stems from the company’s belief that adding a nutritional label is “right for [its] business and [its] consumers.” Id. The new labels are said to debut in mid-March. The COLA for Miller64, as of February 20, 2014, indicates that the cans will include the serving size, calorie count, carbohydrates, fat, and protein content.
One of my recent pieces was published by Cornell International Law Journal Online, which is an incredible online collection of short publications written by attorneys and law students discussing contemporary legal issues in various fields. I wrote about China with respect to trademark and the wine industry. Specifically, I discussed the success of two wine companies, Château Ausone and Barrière Frères, in front of the China Trademark Office (“CTMO”) at the dissatisfaction of two others, Castel Frères and Château Listran. See No Wine-ing: The Story of Wine Companies and Trademark in China.
For Château Ausone and Barrière Frères, it seemed as though China’s trademark office might be progressing and navigating away from its past history of awarding applicants who were first-to-file with the trademark (regardless of the applicant’s actual affiliation with the mark and irrespective of whether the true mark owner had evidence of prior use of the mark in Chinese commerce). Unfortunately, for Castel, the CTMO went in another direction. Back in July, a Chinese wine distributor, Panati Wine Co., Ltd., won trademark rights against an established French wine company, Castel Frères. See See Largest Trademark Lawsuit in China’s Wine Industry Won Against French Castel. Although Castel’s wine was present in the Chinese market since 1999, the company did not register its mark and thus Panati, who filed first, established rights to the mark. Generally speaking, in the past, it has been the tradition of the CTMO to award trademark rights to individuals who are first to file a trademark application for the mark at issue. More information on the Castel and Panati dispute is available at On Reserve’s recent post French Wine Company Castel Frères to Pursue Trademark Battle Against Panati in China’s Supreme Court.
In October, On Reserve blogged that Castel decided to pursue the case in China’s Supreme Court in Beijing and would essentially “do whatever it takes” to receive a favorable outcome. See Castel Takes Trademark Battle to China’s Supreme Court. Last week, Decanter noted that Castel received a notable and favorable ruling from China’s Supreme Court. This ruling is with respect to the fine issued by the lower court only (i.e., the Supreme Court has not reviewed Castel’s actual trademark). According to Decanter, the Supreme Court of China suspended the lower court’s decision to fine Castel CNY34m, or $5.6 million, which was payable to Panati and its owner. See China’s Supreme Court Suspends Castel Trademark Fine.