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 Beerdates.com) 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 
marketplace.

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.