Court opinion shows the uphill battle beverage producers face in looking to claim health benefits for alcoholic products and finds that TTB regulations prohibiting those claims withstand First Amendment scrutiny.

Bellion Spirits petitioned the TTB to make health statements about the positive effects of a compound called NTX in their Bellion Vodka. But the TTB found that “the proposed claims about alcohol beverages infused with NTX are explicit and implicit specific health claims that are not supported by credible evidence” which “create a misleading impression that consumption of alcohol beverages infused with NTX will protect consumers from certain serious health risks associated with both moderate and heavy levels of alcohol consumption.” 

The TTB reached the determination in conjunction with the FDA examining Bellion’s evidence (See the full appendix linked below) including scientific studies introduced to support the claims about NTX’s impact on DNA damage. You can find and read the decision letter at #58 in the appendix linked below.

Bellion took the TTB to court looking for review and a determination that the TTB and FDA’s findings were in error and that Bellion should be allowed to advertise the health benefits of NTX arguing that the restrictions on advertising health benefits violated the First Amendment and that the TTB exceeded its authority in working with the FDA in assessing NTX and that the TTB’s regulations on advertising health benefits in alcoholic beverages are unconstitutionally vague.

The court rejected each argument in turn (you can read the opinion linked below). Notably, for the First Amendment challenges, the TTB found that the Central Hudson test was met because the TTB’s regulations protected against consumer fraud which was a substantial government interest.The court also rejected the argument that the COLA process amounts to a prior restraint on speech and posited that it withstood such a challenge with the same criteria that the FDA’s regulation and the need for prior approval of all health claims on dietary supplement labels did.

Surely you want to review the opinion – if for nothing else, witty references to “corked” reasoning, arguments pouring  “old wine into new bottles” and an excellent Churchill quote.

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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1 Response

  1. August 12, 2019

    […] post Court opinion shows the uphill battle beverage producers face in looking to claim health benefits fo… appeared first on Libation Law […]

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