What’s the difference between synthetic caffeine and coffee beans? [legal]

NOTE: Please see the update at the bottom of the post.

According to some potentially sweeping legislation, the difference between synthetic caffeine and coffee beans doesn’t matter. So what, you might ask.

Alcoholic energy drinks are a somewhat recent phenomenon. Over the past 5 years or so, numerous companies have entered the malt beverage market with caffeine-infused drinks. One you might have heard of is Sparks. Essentially, take Red Bull and Smirnoff Ice and can it.

While there haven’t really been any studies to confirm that these beverages are dangerous, public outcry after the deaths of some college students who had been drinking similar beverages has caused a federal legislative movement. A few states have already enacted their own bans on these drinks, and the FDA is expected to rule shortly as well.

The issue comes in the form of loose, vague, and overarching wording. In banning caffeinated alcoholic beverages, naturally occurring caffeine, from coffee, tea, and chocolate, would also be banned. So not only is Four Loko going to be banned, but Great Divide Espresso Oak Aged Yeti would also be taken off the shelves. I personally won’t mourn the loss of Joose, but Youngs Double Chocolate Stout will be missed.

The ban on these drinks needs to be more specific. If I want to add some tea to my boil, or some espresso in secondary, I’m not doing so to give the consumer an energy boost; I’m doing it to add flavor and complexity. These natural ingredients need not be banned.

As of right now, I’m not sure what you or I can do to help. Be aware of the issues, and keep an eye on the Brewer’s Association. They’re a great clearing house and focal point for political and legal information related to brewing. Following is the press release from BA about this ban:

BREWERS ASSOCIATION CALLS FOR RULEMAKING ON CAFFEINE-ADDED ALCOHOL BEVERAGES

Boulder, CO • November 16, 2010—The Brewers Association announces today that it will formally petition the U.S. Tax and Trade Bureau (TTB) to conduct rulemaking on alcoholic energy drinks.

The petition seeks to disallow synthetic and pure caffeine additions to alcohol beverages, but allow incidental caffeine from ingredients that have a long tradition in brewing, such as coffee, chocolate and tea. The petition seeks to clarify that coffee, chocolate, herbs, spices, seeds and fruit are ingredients that should remain available to brewers to make beers for responsible enjoyment by beer drinkers.

Certain alcoholic energy drinks have received significant negative attention from state attorneys general, public health groups and concerned citizens. Many states are taking action this fall before the federal government has responded, leaving a patchwork of different regulatory wording, all with the same intention. The goal of this federal petition is to provide a clear and consistent national standard to assist state-based rulemaking under the 21st Amendment. This standard would remove the products of concern from shelves without creating unintended damage to the hundreds of craft brewers who, for many years, have been using traditional ingredients like coffee, tea and chocolate to responsibly craft interesting and flavorful beers.

Brewers Association President Charlie Papazian stated, “Responsible brewers have successfully used coffee, chocolate and tea to add interesting flavor and complexity to their beers for decades. In fact, the Aztecs brewed a corn, honey and chili-based beer that contained cocoa. Many craft brewers build on these traditions today using coffee, tea and chocolate. On the other hand, the addition of artificial caffeine not from a natural ingredient source has no heritage or tradition in brewing. We support a ban on the direct addition of caffeine.” The Brewers Association invites TTB to open up public comment and rulemaking on whether these products are appropriate for responsible consumption.

More information:

• Brewers Association Press Release
• WSJ – FDA expected to ban alcoholic energy drinks Wed
• NY Times – F.D.A. Says It May Ban Alcoholic Drinks With Caffeine
• CNN – Senator: FDA to ban caffeinated alcohol drinks

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UPDATE

The FDA sent warning letters to 4 companies they were seriously concerned about. In their explanation, they specifically said coffee-flavored beverages are safe, at least for now:

These warning letters were not directed at alcoholic beverages that only contain caffeine as a natural constituent of one or more of their ingredients, such as a coffee flavoring. (Read more)

More from the FDA:

• Caffeinated Alcoholic Beverages
• FDA Warning Letters issued to four makers of caffeinated alcoholic beverages
• Serious Concerns Over Alcoholic Beverages with Added Caffeine
• Questions and Answers: Caffeinated Alcohol Beverages

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HR 4278 is getting national press

A few weeks ago I got a comment from a reporter at ABC News named Cullen Dirner. She wanted to know more about HR 4278, and at the time, my post on this blog and my Hop Press post were in the top 10 Google results.

Cullen and I chatted for a few minutes about the issues, beer in general, other people who might know what’s going on, etc.

Today, the article was on the front page of ABCNews.com:

I’m quoted in it too! With a link to MadHavenBrewing.com.

P.J. Hoberman, a 26-year-old self-proclaimed “nano craft brewer” from Denver, is hoping that the passage of the bill will give his new brew “Mad Haven” more of a fighting chance.

“It saves enough money where we can survive,” Hoberman said. “Past that, it allows us to buy an extra tank. At the next level, more employees who can then help us make more beer.”

Read the whole thing at http://abcnews.go.com/Politics/beer-stimulus-hops-barley-create-jobs/story?id=10932224.

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More thoughts on Rock Art, Monster, Trademarks, and puppies

Sorry, nothing about puppies. Go here to see one.

I figured I’d write a little more on this whole… issue with Rock Art and Monster. My last post was sort of reactionary and heated. This one is more thoughtful, I hope.

Support for Rock Art has been astounding, at least within the craft beer and Twitter realms. There are a lot of different goals out there. Everyone is shouting Boycott Monster very loudly, and honestly, it’s not that hard to do. I prefer coffee. Or Rockstar. Red Bull reminds me of very late nights in college, generally mixed with a deer-blood based liquor.

If we climb up the boycotting tree, I honestly don’t have much issue never buying an A-B product again. In fact, I generally don’t as it is. There are two brands in their portfolio that I would have some issue saying goodbye to: Bass and Boddingtons. But I don’t foresee any problems saying goodbye to Chelada, the combination of Bud Light with the refreshing taste of Clamato, spices and a hint of lime.

Refreshing clam juice and delicious light beer.. mmmm

But I digress. The real goal here, at least in my mind, is to ensure Hansen’s Beverage Company does not pursue legal action again Rock Art Brewery. What’s that? Ensure they don’t pursue? Aren’t they already in a heated, cut throat court battle, likely to grace the nation’s networks any day now? No. There’s not been any lawsuit as of yet. Hansen’s intellectual property lawyers suggested a cease and desist as part of their due diligence to protect the trademark that is Monster Energy. Rock Art said no, we will not cease and desist. Hansen’s now has the option to say “Cool, no worries. Thanks for your timely response. We really enjoy your beer, btw.” The other option is for them to remove their very dirty glove, slap Rock Art in the face with it, and declare a duel. Sadly, it would be like the epic battle between the Canadian and American Air Forces in South Park, the movie. For those not up on that certain pop culture reference, a legal battle between Hansen’s and Rock Art would be like a pea shooter vs. a nuke. So, our goal as craft beer supporters is the former option (“Yo, good beer!”) rather than the latter (“Hey, let’s fight”).

Monster drinking Monster. Whoa.

Now, some might (and have) ask “why?”. That’s good. Getting all up in arms over an issue and not knowing why is a pretty big problem these days. So why are we all so pissed at Hansen’s? They are, in fact, doing their duty in protecting a very expensive trademark. They even sent a cease and desist a real monster!

There are a few reasons as to why we’re all so pissed. First is the issue of brand confusion and dilution. I don’t care what Wal-Mart you go to, no one is going to mistake an oversized can of Monster Energy for a bomber of 10% ABV Vermonster. If anything, this cease and desist has brought Vermonster to the public eye, where before it would have stayed in Vermont. (Yes, I just said Vermont isn’t the public eye. Do you know where Morrisville, VT is? Do you know where VT is?)

Monster Energy is a registered trademark. In fact, their cease and desist lists five marks:

1. Registration No. 3,044,315 for the mark MONSTER ENERGY
2. Registration No. 3,044,314 for the mark M MONSTER ENERGY
3. Registration No. 3,057,061 for the mark MONSTER ENERGY
4. Registration No. 3,134,842 for the mark M MONSTER ENERGY
5. Registration No. 3,134,841 for the mark MONSTER ENERGY and Design

I went to the United States Patent and Trademark Office to take looksie at these marks. Let’s see what I found.

The first two are the same, just for different typed designs. The meat:

IC 005. US 006 018 044 046 051 052. G & S: nutritional supplements in liquid and non-liquid form, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not. FIRST USE: 20020327. FIRST USE IN COMMERCE: 20020418

Nutritional Supplements. Pretty sure beer is a nutritional supplement, right? All jokes aside, there’s not much I can come up with for why a chocolate porter might be sold at your local GNC. Moving on.

IC 032. US 045 046 048. G & S: Fruit juice drinks having a juice content of 50% or less by volume that are shelf stable, carbonated soft drinks, carbonated drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, aerated water, soda water and seltzer water, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not. FIRST USE: 20020327. FIRST USE IN COMMERCE: 20020418

Fruit juice. Yes, some beer has fruit in it. The guy who won this year’s NHC made a Peach Lambic with 15 lbs of fresh peaches. Pulled out 5 gallons after 10 days, 180 days, and 360 days, then blended them. Sounds so good! But I digress.

The last two are also the same, but for different marks:

IC 032. US 045 046 048. G & S: Beverages, namely, carbonated soft drinks, carbonated drinks enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, carbonated and non-carbonated energy or sports drinks, fruit juice drinks having a juice content of 50% or less by volume that are shelf stable, and water, but excluding perishable beverage products that contain fruit juice or soy, whether such products are pasteurized or not. FIRST USE: 20020327. FIRST USE IN COMMERCE: 20020418

This one gets the closest to our industry. But it is still a distant cry from beer. Things like Monster Energy are called soft drinks because they’re not hard drinks. Hard drinks have alcohol. Soft ones do not. Good talk.

But wait! Soft drinks do not have alcohol… What about a non-alcoholic beer? You’re totally right. Here’s Coors’ NA mark (Registration No. 2,335,054):

IC 032. US 045 046 048. G & S: NON-ALCOHOLIC BEER. FIRST USE: 19911001. FIRST USE IN COMMERCE: 19911001

See where it mentions beer, specifically? How about MillerCoors, as a company trademark (Serial No. 77,432,087)

IC 032. US 045 046 048. G & S: Beer; Soft drinks

IC 033. US 047 049. G & S: Alcoholic beverage produced from a brewed malt base with natural flavors

I can keep going. Coors Edge (Registration No. 3,297,189)

IC 032. US 045 046 048. G & S: beer. FIRST USE: 20040601. FIRST USE IN COMMERCE: 20040601

More MillerCoors (Serial No. 77,511,583):

IC 032. US 045 046 048. G & S: Beer

Coors (Registration No. 3,467,665):

IC 032. US 045 046 048. G & S: BEER. FIRST USE: 20060100. FIRST USE IN COMMERCE: 20060100

Just a few more, I promise. Sam Adams (Registration No. 1,987,061):

IC 032. US 045 046 048. G & S: beverages, namely beer and ale. FIRST USE: 19921105. FIRST USE IN COMMERCE: 19940909

New Belgium (Registration No. 3,018,632):

IC 032. US 045 046 048. G & S: FERMENTED MALT BEVERAGES, NAMELY, BEER AND ALE. FIRST USE: 19981200. FIRST USE IN COMMERCE: 19981200

Fat Tire by New Belgium (Registration No. 1,846,908):

IC 032. US 048. G & S: fermented malt beverages; namely, ale. FIRST USE: 19910628. FIRST USE IN COMMERCE: 19920320

Last one. Coca-Cola (Registration No. 3,252,896):

IC 032. US 045 046 048. G & S: Non-alcoholic beverages, namely, soft drinks; and syrups and concentrates for making beverages, namely, soft drinks. FIRST USE: 20021215. FIRST USE IN COMMERCE: 20030101

K I’m done. The point? Beer says beer, non-beer doesn’t. If Monster wants to maintain its trademark across all liquids, cool. But it’s registration is not for all liquids. It can’t tell some laundry detergent to stop being so monstery. It’s also not across all beverages. It’s across soft drinks, sports drinks, energy drinks, etc. But it’s registration does not enter the beer world. Nor should its lawyers.

Now yes, we’re all up in arms because it’s a small company. We love the underdog. It’s true. If MillerCoors put out Monster Ale, we’d expect Hansen’s to sue on the spot. Likewise, if Monster Energy came out with a Vermonster Energy Drink, for all your blue ice days, no one would expect Rock Art to do a thing, because it’s just too expensive. So there’s that argument. That’s the VerPepsi argument. However, Pepsi isn’t a real word. Monster is.

One of the biggest issues I have with all of this is that Rock Art Vermonster isn’t the only Monster or -monster beer on the market. Now, don’t take this the wrong way. I don’t want any brewery to get sued over Hop Ness Monster or This Beer Is An Effing Monster or some other neat name. But the question is, why Rock Art? Why haven’t the other 58 monster named brews gotten a letter? Again, I really don’t want that to happen. But, if Hansen’s is so upset about this one, why have they left the others alone? A Beer Advocate search for *monster* (any names with monster as a whole word) returns 34 results. I’m not smart enough to do a search for words containing monster. Like Vermonster. But that basic search returns things like “Brooklyn Monster Ale” and “New Old Lompoc Monster Mash Porter”. Vermonster isn’t even a real word! Here’s a fun game. Find Monster in this selection. Find Vermonster.

So seriously, Hansen’s. Just drop it.

For continuing coverage on this topic, please bookmark MonsterBoycott.

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Support the little guy

This blog is generally focussed on me and the brewery. That’s a conscious choice, because there are a lot of other blogs and sites that focus on other things. So yes, startingabrewery.wordpress.com is self-centered. Deal with it.

Today, however, the support goes over to Rock Art Brewery in Vermont. If you haven’t heard about this story yet, allow me to fill you in.

Rock Art Brewery is a nice little microbrewery in Morrisville, Vermont. Never heard of the brewery or the town? Or Vermont? Weird. Obviously they’re a threat to the energy drink empire that starts with M and ends with onster. (Monster, if you missed that)

Rock Art has been in operation for 10 years. Matt started the company by himself in his basement, and now they have a whopping 7 employees. For the 10 year anniversary, Matt decided to make a super hoppy, 10%, 100IBU monster of a beer, aptly named the Vermonster. And he got slapped with a Cease and Desist from Hansen, the publicly traded parent of Monster Energy.

Here’s a video with more information, starring Matt of Rock Art:

Katie over at Gonzo Gastronomy posted a great write up on this battle: “All the dishes rattle in the cupboard when the elephants arrive…”

Chris at snowboarding.about.com wrote Monster Energy Is Messing With The Little Guy.

Ashley – aka The Beer Wench – just posted her writeup as well.

While Rock Art has close to zero chance of losing this legal battle, Hansen is worth around a billion dollars. $1,000,000,000. They can sit there and appeal the verdict of each and every appearance in court until Rock Art either doesn’t have the money to go on, or changes the name. This means that while the law states Rock Art is in the right, isn’t endangering the Monster trademark, and shouldn’t have ever garnered the attention of Hansen, Hansen will win because they have more money.

Matt and the rest of Rock Art have decided to stand up to this. They could just change the name and go on. But they’re not. They stand up for what they believe in.

Matt’s got this awesome cliche thing going on, first by rocking the American Dream (basement brewer makes it 10 years? That’s awesome!) and now stepping into David’s shoes to try and sling a 12 oz rock at Goliath.

I’m hoping to be a microbrewery owner soon. It makes me smile to see someone standing up for his ideals and for the industry.

Help Matt stand up. Support Rock Art. Boycott Monster. Spread the word. Make sure the world knows how pissed off we are.

If you’re on the Twitter machine, let @MonsterEnergy know how you feel. And give @RockArtBrewery a follow too. Let me know other ways you’re letting Monster know that this. is. bullshit.

[Update] There is now a petition to show support. Sign it.

And smash cans with bigger cans.

More people writing about this. I’ll keep updating this list as I find more:

• Save Vermonster, Save Rock Art Brewery (w/12 things you can do to help)
• Why You should Boycott Monster Energy Drink

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