Is TTB Ruling 2012-4 a Passive Statement About The Merit of “Freshness Dates”?

The entirety of TTB ruling 2012-4 addresses what the TTB describes as the “realities of modern marketing practices” – allowing retailers to return beer to wholesalers based on “freshness concerns” without violating prohibitions against consignment sales between wholesalers and retailers.

In allowing the practice in light of these “modern marketing practices” (see the TTB notes that it believes the following policy will minimize the risk that the “industry will use freshness dating returns as a subterfuge for disposing of slow-moving products.”  The “policy” is pretty straightforward:

Under the following conditions, TTB will consider the return of malt beverages for cash or credit against outstanding indebtedness or exchange of such malt beverages for freshness reasons as a return by a retailer for ordinary or commercial reasons under 27 CFR 11.32:

  The brewer has policies and procedures in place that specify the date the retailer must pull the product;

  Such brewer’s freshness return/exchange policies and procedures are readily verifiable and consistently followed by the brewer;

  The container has identifying markings that correspond with this date; and

  The malt beverage product pulled by the retailer may not re-enter the retail 

What’s not straightforward is why the already existing exception of “Defective products” – which is one of the seven “ordinary and usual commercial reasons” for product return found in subpart D of Part 11 – “Rules for the Return of Distilled Spirits, Wine , and Malt Beverages” – doesn’t already cover the scenario of a product that’s past its prime:

§ 11.32   Defective products.

Products which are unmarketable because of product deterioration, leaking containers, damaged labels or missing or mutilated tamper evident closures may be exchanged for an equal quantity of identical products or may be returned for cash or credit against outstanding indebtedness.

Unless, of course, the TTB is acknowledging that the freshness dates of many manufacturers are more marketing and less taste/flavor/health concerns, thereby admitting that “product deterioration” can’t be invoked just because of a “freshness concern”, since those “concerns” don’t effect taste/flavor/health in the manner that implicate “deterioration”… which may be why the “realities of modern marketing practices” were invoked in the first place.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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