TTB Introduces New COLA Form for Label Approval

The Alcohol Tobacco Tax and Trade Bureau have released an updated version of the Certificate of Label Approval Form (TTB F 5100.31). The new form now requests a listing of any grape varietals that are displayed on the label. Additionally, all pre-COLA evaluations should now be noted in the data field marked “Formulas”. The TTB news release says the following about the form update:
We are updating COLAs Online to incorporate these changes. When we update the electronic system, applicants will not see an immediate change to the data collection portion of the electronic application and should not change the manner in which they apply, but their approvals will contain the new data fields. An additional update to COLAs Online is expected to take place in December 2011, and at that time the system will be updated to request grape varietal information as item 10 of the electronic application. From now until the expected December 2011 update, item 10 will remain blank on all electronically filed COLA approvals with nothing more required from COLA applicants.
The new paper version of the COLA form is not impacted by the data collection issue identified above for the electronic applications. Therefore, paper applicants are expected to complete all relevant items on the COLA application form, including item 10 for grape varietal information displayed on their wine labels. We will be able to capture this information in our database during the data entry process.

The new form is available online through the TTB’s website (and on the WineAmerica website). The TTB will accept paper applications on the older forms until December 30, 2011. For more information please contact Michael Kaiser at mkaiser@wineamerica.org

Mandatory E-Verify Legislation Introduced in Both Chambers

By Jennifer Montgomery

Last week was a very busy one for the Agriculture Coalition for Immigration Reform (ACIR) as mandatory E-Verify legislation was introduced in both the House and Senate.
The House bill, HR 2164 (the Legal Workforce Act), was introduced last Wednesday in a House Judiciary Committee hearing by Chairman Lamar Smith (R-TX) amid significant concerns of the Agriculture community. Charles Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, introduced a similar version in the Senate a day later.
These bills would require all employers to use E-Verify, an internet based federal system that compares US Department and Homeland Security and Social Security Administration records to information contained on an employee’s I-9 Employment Eligibility Verification form, without including a fix for the broken H-2A temporary and seasonal alien agriculture worker program. The current H-2A program is unworkable and unable to meet the labor intensive needs of US agriculture. Therefore, passage of either of the bills without a meaningful solution to the agriculture labor problem is more than kicking the can down the road, it will be disastrous.
The enforcement-only approach, with stepped up raids and I-9 audits, cannot solve the problem. It is the hope of WineAmerica, as part of ACIR, that Congress will reconsider this tactic to curb illegal immigration and provide agriculture with a means to employ a stable, legal workforce.

TTB Update

By Michael Kaiser

The Alcohol and Tobacco Tax and Trade Bureau is still facing major delays in the review of Certificate of Label Approvals. As it stands now, it is taking 30 days for an online submission and 60 days for a paper submission. If you are going to be submitting a wine label for approval please allow for adequate time for review.

One question that comes up a lot with wine labels is trademarking. The TTB does not regulate trademarks. Their only concern is the accuracy of the wine label and if it is compliant with the laws and regulations. To clarify this further, the TTB has issued a statement of clarification about trademarking:

Does my TTB certificate of label approval mean I have trademark protection?

TTB’s authority to issue certificates of label approval (COLAs) for alcohol beverage products does not include trademark protection, as is stated in the instructions for TTB Form 5100.31, Application for and Certification/Exemption of Label/Bottle Approval. While TTB may be aware of an established trademark when acting on an application for a COLA, that awareness is important only for carrying out the labeling authority under the deception and misleading standards imposed by the Federal Alcohol Administration Act and not for purposes of Federal law applicable to trademarks. Therefore, TTB approval of a COLA neither automatically confers trademark protection, nor indicates that a particular mark may be used in violation of applicable intellectual property law.

The U.S. Patent and Trademark Office (USPTO) provides for trademark registrations and guides United States domestic and international intellectual property policies. The USPTO Web site address is www.uspto.gov/. You may find the USPTO’s list of frequently asked questions on the subject of trademarks particularly helpful: www.uspto.gov/faq/trademarks.jsp. The USPTO also has a Web site on trademark protection specifically designed for small business owners at www.uspto.gov/smallbusiness/.

If you have any questions about this please contact me at mkaiser@wineamerica.org.

WineAmerica Supports New Jersey Bill Allowing Direct Shipping

May 26, 2011
Chairman John A. Girgenti
Senate Law and Public Safety Committee
Committee Room 10, 3rd Floor
State House Annex
125 W State St
Trenton, NJ 08608-1101
Dear Chairman Girgenti and Members of the Committee:
WineAmerica, the National Association of American Wineries, on behalf of our member wineries in New Jersey and across the nation, encourages you to support S2782, a bill that would permit New Jersey and out-of-state wineries to self-distribute their products, operate satellite tasting outlets, and ship wine directly to New Jersey consumers. WineAmerica is the only national winery trade association.
We support this bill because it secures local winery privileges threatened by the recent Third Circuit decision in Freeman v. Corzine, 629 F.3d 146 (3d Cir. 2010). S2782 offers continuing support to the New Jersey wine industry’s progress, growth and prosperity.
New Jersey’s dynamic wine industry is a critical component of the state’s agricultural potential and heritage, and contributes to the preservation of rural landscapes that could otherwise be turned over to developers. In crafting its winery laws, New Jersey has rightly tried to keep these agricultural spaces vital and flourishing. S2782 supports this legitimate local purpose and promotes a traditional agricultural form—winemaking—
that reliably makes family farming more economically feasible. Small, dynamic businesses, like those of our members, that are creating jobs should be provided every opportunity to sell their goods in open markets. Wineries are keeping small farms viable and, through agri-tourism, are building a new model for farm development. The wine industry helps keep the “Garden” in the “Garden State.”
Many New Jersey wineries are unable, or find it difficult, to reach consumers in the state, since smaller brands are not likely to find distribution through traditional three-tier channels. Satellite tasting outlets and self-distribution enable wineries to capture lost sales that often result from consumers’ inability to find their favorite New Jersey wines on local store shelves. Similarly, direct-to-consumer shipping has proven a vital channel for customers to find the wines they want, while still allowing for safe and effective regulation.
In a recent comprehensive report examining direct shipping laws in the states where shipping is allowed, the Maryland Comptroller’s Office, the state agency that regulates alcohol in Maryland, concluded that: (1) state regulation of direct-to-consumer shipping is effective; (2) the safety protocols written into state direct shipping laws prevent deliveries to minors; and (3) recordkeeping and reporting requirements give states the tools for effective tax collection on wine shipments. See Peter Franchot, Comptroller of Maryland, Direct Wine Shipment Report (2010), available at http://www.comp.state.md.us/DWS_Complete.pdf.
WineAmerica fully supports S2782, albeit with measured trepidation for its direct shipping capacity caps. See Family Winemakers of Cal. v. Jenkins, 592 F.3d 1 (1st Cir. 2010); but see Black Star Farms LLC v. Oliver, 600 F.3d 1225 (9th Cir. 2010). Wineries add both to the character and the strength of New Jersey’s agricultural industry, tourism and family farm development. New Jersey wineries should be afforded the opportunity to operate efficiently and profitably and New Jersey’s citizens should be allowed the benefit of free access to the wines of their choice. We believe that S2782 promotes these aims, and respectfully request that you support this important bill.
Sincerely,
Cary M. Greene
General Council