COLA Consistency

[BlackwaterTM]

Just going through the COLA process for the first time and are noticing that what feedback we are hearing from COLA we cannot see applied uniformly across the industry.

So COLA is telling us we need to comply to the nth degree of detail on commodity statements and all the other bottle clutter yet I can go out, pick up a bottle of hangar 1 and see nothing referencing a base ingredient on there. Not like it is just them, virtually every bottle on the shelf is inconsistent with the written letter of the regs in some way. Does it just fall to who you get, luck of the draw, when you submit online? (if so, I think we got 'the new guy')

I suppose regulation is regulation, but how do you apply it so sporadically? And its like quicksand, the more we struggle the worse it gets.

Anyone have recommendations? I have read the other posts in here on COLA and we're going to go into the DC office for a face to face. It is hurting us from a time perspective because we're silk screening the label on the bottle, so every fail causes us 4-6 more weeks to resubmit, if we're lucky!

Thanks everyone for your thoughts,

Jon

[Gwydion Stone]

Hey Jon.

First of all, "COLA" is not a "they", it's an "it". It stands for Certificate Of Label Approval. The TTB gives you a COLA.

Second, as you've seen, they can be very inconsistent and each specialist has a certain degree of discretionary authority in awarding COLAs.

There's also the matter of the class and type of your product. Different classes have different labeling rules. Read Chapter 4 of the Beverage Alcohol Manual for complete guidelines.

What are you making?

[BlackwaterTM]

We're doing Vodka right now - true enough on the it v. they. There is a they hindering the it, however

We have been through chapter four, inside and out. Like any proprietary recipe, I would prefer not to have to put it on the label. Our rep yesterday told our president that each commodity in the bottle had to be on it with a percentage!

I said "Bull____!"

[BlackwaterTM]

And in all fairness, we could arguably be part of the hindrance. We could just say yes ma'am, yes ma'am, yes ma'am and be done with it. But it's not in the best interest of the company or brand, no one else seems to be required to do it, so the inner monologue is "why me?".

I think there is also a degree of skepticism after navigating the regulatory waters leading to this point. The first answer is not always correct, cannot be all the time in any organization.

[cowdery]

While I have seen some inconsistency in labeling, with information that seems to be required not appearing, section 5.39 is pretty unambiguous:

(a) Neutral spirits and name of commodity. (1) In the case of distilled spirits (other than cordials, liqueurs, and specialties) produced by blending or rectification, if neutral spirits have been used in the production thereof, there shall be stated the percentage of neutral spirits so used and the name of the commodity from which such neutral spirits have been distilled. The statement of percentage and the name of the commodity shall be made in substantially the following form: ``--------% neutral spirits distilled from -------------- (insert grain, cane products, or fruit as appropriate)''; or ``--------% neutral spirits (vodka) distilled from -------------- (insert grain, cane products, or fruit, as appropriate)''; or ``--------% grain (cane products), (fruit) neutral spirits'', or ``--------% grain spirits.''

[BlackwaterTM]

Sorry - I wasn't saying the regs were murky at all, simply the application of them. It leads me to believe there are loop holes here. I guess it could just be inconsistent enforcement leaves some folks happier and some folks less so. Might just be on the losing end this time. Hoping for a loop hole though.

[Ralph at Tuthilltown]

Welcome to the Club. The tales you tell are not new. Sometimes there needs be discussion with a supervisor to get things clear. We came up against a reviewer who insisted in multiple phone conversations with me and with my partner, Single Malt could not be made in the US, it is a product of Scotland. We ended up having to guide her to the website of another distillery in the US to show her the approved label of their Single Malt Whiskey. She said, "I'll get back to you." In short order our label was approved as it we submitted it.

You're more likely to run into problems if you are launching in a State which requires a separate label review and approval, such as NY State. By way of example, a label must be approved by the NY State Liquor Authority and may not be submitted till the Federal COLA is secured; then we must send a physical copy of the State application, the Federal approval, physical copies of the labels and a bank check (no business checks or personal checks accepted) and it all goes by mail or Fedex, on paper to the SLA. The typical processing period is sixty days, if you don't hear from them in sixty days you may assume it is approved and proceed. They will not notify you of the approval unless you send them a self addressed stamped envelope to send the approval back to you; or until your official certificate arrives which is usually a month after the actual approval. And if you make a mistake on the State application, they pack up the entire package and send it all back to you by US Postal Service, including the check with a list of the mistakes.

The State will not defer to the Fed because the mandates of the two are not the same. The Fed wants the excise tax and compliance. The States want Temperance, look it up, bet your State alcohol code includes a good deal of outdated jargon as the foundation of alcohol "control" law.

The most important thing to keep in mind, to your earlier point about the TTB and the people doing the work there, there is a "they" behind the "it" and They are humans who have moods like the rest of us. It may sound silly and unprofessional to have to consider it, but my advice is don't piss them off. Animosity, however well earned or not, will not help your application process. Just ask nicely to speak to a Supervisor or have one phone you back. When you get a Supervisor on the phone, be clear about your question, to the point, and have the regulations in front of you so that either you can point out the inconsistency, or she/he can walk you through the regulation to understand the TTB logic behind the decision.

R

[ibgeekn]

(a) Neutral spirits and name of commodity. (1) In the case of distilled spirits (other than cordials, liqueurs, and specialties) produced by blending or rectification, if neutral spirits have been used in the production thereof, there shall be stated the percentage of neutral spirits so used and the name of the commodity from which such neutral spirits have been distilled. The statement of percentage and the name of the commodity shall be made in substantially the following form: ``--------% neutral spirits distilled from -------------- (insert grain, cane products, or fruit as appropriate)''; or ``--------% neutral spirits (vodka) distilled from -------------- (insert grain, cane products, or fruit, as appropriate)''; or ``--------% grain (cane products), (fruit) neutral spirits'', or ``--------% grain spirits.''

The quoted is true for using NGS, however, are you producing from NGS or distilling directly from grain or something yourself?

It would appear your best defense would be to pull COLAs from other products, print out the labeling of the cola and and display them as not adhereing to the standards you are being held to, if that's indeed the case.

[BlackwaterTM]

We have tried speaking to the point that there is inconsistency here, but that has a couple problems inherent. The first of which is that they seem to have a policy against discussing any other label. So far they have refused to discuss any with us. Also, how do you go about it without pointing the finger at someone else who could facee actual financial repercussions? Certainly don't want to put other folks at risk, it is a hard line to draw though. Thankfully the inconsistency seems fairly widespread, so I don't think the need exists to point out one brand or label.

[cowdery]

Even the majors have funny label approval stories. There are always hiccups when you try to do something a little different. The fact that vodkas have to disclose what they are made from, with percentages if types (grain, fruit, cane) are mixed, is very well-established, however, even if there seem to be some people out there who didn't do it correctly. If the TTB made a mistake with an approval and you're trying to argue that they should repeat that mistake for you, that's a losing argument.

[BlackwaterTM]

Thanks for all the input, guys. We will post an 'after action' once we get through approval and let you all know how it winds up.

[Beauport Bob]

Just 2 cent worth, you may think nothing of it, but should you express the products as GNS as in neutral spirits made from grain, because there are other neutral spirits, rather than NGS or grain spirits neutralized, TTB will appreciate your knowing the difference.

[Ralph at Tuthilltown]

We have had the experience on more than one occasion that a label is approved, then we submit another label for a different product in the same category, with the exact same label art and use of wording and it comes back denied. When the inconsistency is pointed out, the response is that it was a mistake the first time and we need to redesign and reprint ALL our labels because they were all approved incorrectly. We gained some consideration in that they allowed us to use up the labels we'd already printed but had to resubmit ALL our whiskey labels for reapproval. Once finished, we submitted another version with simple copy changes and were then told there was a second error on our labels in the size and use and placement of a particular phrase (which had not changed since we started with our first "approved" labels). We raised an objection and the agency relented since the problem was not substantive.

The earlier comment in one of the above posts is accurate. The examiners have discretion and so things are not always interpreted the same from one submission to the next. It helps to do some homework and have examples of previously approved labels to bolster your side of the appeal; as we did with our Single Malt label as I described in my earlier post. We are currently having a discussion on the use of second barrel aging of whiskey. The TTB informed our compliance person that we could not put our bourbon whiskey into a second barrel, for instance maybe a sherry cask, and call it Bourbon Whiskey. Prichards Double Barrel Bourbon is an example of a Bourbon that contradicts that determination.

The key is homework and polite persistence.

R