Introduction

[dhdunbar]

I'm Dave Dunbar and I consult on federal and state compliance issues. I'm not here to advertise. I see a lot of urban legends getting started and want to comment before things get out of hand. I worked for ATF (TTB's predecessor agency as TTB is found of calling it) for about 35 years. My experience actually spans about half of the life of the agency, so I have an acquaintance with much of the regulatory history of issues with which distillers must deal. If you find me soliciting business by suggesting someone contact me for more information, slap my hand. I'll only respond to forum issues when I offer the information free of charge. Look to my posts to determine if I know what I'm talking about.

[porter]

Good to see you here.............but I'm not sure of what 'urban legends' you speak of that may be getting out of hand. Any insight there????????????

[dhdunbar]

Sure - Last night I posted on the issue of DSP's located in connection with a residence. That's one example. There is an approach to that issue, but the posts are mostly speculative or anecdotal. They don't go back to the basics, which is the law, 26 USC 5178, and how TTB must maneuver through that to reach a decision on whether to allow a particular location. Since TTB is the agency having jurisdiction, it writes the rules, and the courts give deference to TTB's interpretation of the statute. As long as the interpretation is reasonable, and the agency has followed the administrative procedures act, the courts will not replace TTB's position with their own position, even if they would reach a different conclusion than TTB has. Speculation, etc., is often a form of interjecting one's own opinion in place of TTB's. Citing anecdotal evidence ignores, in most cases, the particular circumstances on which TTB based the decision to approve. I want to point out how you must approach TTB if you want them to approve what you propose. Saying that "so and so" was approved, or that the law really addresses safety issues doesn't provide the information necessary to sway TTB's decision in your favor.

That's one example. This morning, I posted on the issue of "tied house" and "three tier" requirements. There I directed the person to a source they could use to determine if the state in which they are located, Virginia, will approve the business model they propose. I tried to present a way to think about that issue. Again, the answer they are going to get is driven by particular circumstances.

Last year I watch with amusement the discussion on unaged whiskey. Everyone knows it is out there. Some conclude that it is permissible, notwithstanding the standard of identity; others conclude that TTB has approved in error;and others conclude that the whiskey must have been aged - that is touched the inside of a barrel - or TTB would not have approved. The later is nonsense, since the label of any whiskey stored fin wood for less than four years must have a statement of the period it spent in the barrel. These labels do not. But I have no answer for this confusing state of affairs and have opted to advise my clients to let sleeping dogs lie. I am not about to ask the agency the "How could you do that when ...." question. Many of you have too much at stake. I will note, however, that TTB says that if you are going to label a product with the simple class type "whiskey," you must submit a formula for pre-COLA evaluation. How did that come about? When I asked if it were really true that "whiskey" required a pre-COLA evaluation, but whiskey labeled as "Rye Whiskey" or "Whiskey Distilled from Malt Mash" did not, the answer desk said, "Yes, because of all of the white whiskeys." I did not say one more word. It appears that in theory they want to see the aging to which the formula says the product will be subjected. So it appears that the issue is on their radar. It will be interesting to see what sort of changes TTB proposes in the NPR to up date the labeling regulations they say they plan on issuing in September (see Treasury's regulatory agenda for info). Will it be as simple as trying to do away with pre-approval of labels, in the manner of the FDA? Or will the agency actually try and wrestle with the issues things like its approval of "aged gin" labels are creating

That's a sample. You are correct to call me on a statement that assumes its premise.