Need Label and Formula Approval? Better Call Robert.
Robert C. Lehrman is a lawyer at Lehrman Beverage Law, PLLC in metro Washington, DC. Since 1988 he has specialized in the federal law surrounding beer, wine and spirits, such as TTB permits, labels, and formulas.
He has helped hundreds of companies formulate beverages to ensure that they are taxed and labeled in an advantageous manner while in compliance with relevant laws and regulations. These companies produce beverages in dozens of countries around the world and range from the largest to the smallest in the beverage industry.
Robert has efficiently reviewed thousands of food and beverage labels over the years. He has also helped to design the labels and get them promptly approved.
When a client calls about a new product they would like to launch, among the first things I tell them is to contact Robert. Neither of us can recall under what circumstances we met, but have some interesting “war stories” about collaborative efforts.
So, I thought it might be fun and informative to interview Robert and for you to learn more about him and his practice.
BB: You are considered among the leading experts in federal regulatory law for alcohol beverages (wine, spirits, and beer). How did you get into this area of specialization?
RL: I stumbled in, like a graduate student into a college bar. I am glad I did. To be honest, it was not a good fit for me in the early years, and I was not wild about the job. It involved a lot of digging through old, tissue-paper pages of dusty old rules, in the CCH Liquor Control Law Reporter. But as I spent more time at it, and got more autonomy, I could change the shape of the job a bit. I think the job changed more than I did. The dusty old pages morphed into up-to-date computer screens. I feel lucky to have been there as law turned from its old, paper ways, toward email and the web.
Anyway, I graduated from law school in Buffalo in the late 1980s. I looked around in DC and the first job offer was from the leading alcohol beverage law firm of the time, Buchman & O’Brien. On that we have something in common because the second of those named partners made his name as general counsel, at a young age, for the leading spirits company of the 20th century — Seagram.
I stayed at Buchman and toiled away in the DC office for a total of about 13 years. At the dawn of the Blackberry age, I decided to embrace the new possibilities and work from anywhere. I started my own little firm in the suburbs, with only a couple of clients. But it really does seem like we have added at least a few clients every week, since that point almost 16 years ago now.
So, getting back to your question, it’s largely happenstance that put me in this position. The internet helped a lot. The rise of small producers helped. Heck, even Arthur Shapiro helped. I am not sure I would enjoy being, for example, a contracts lawyer in a big firm. But, in my current role, what I enjoy most is being at the intersections of law, business, food, branding, and technology. If there is another job that so beautifully blends all these things I like, I can’t think of it.
BB: What are some of the more noteworthy accomplishments you’ve had over the years?
RL: I think the work we did on behalf of absinthe is interesting. It’s a long story so you can find all the details here. The short version is that I worked on absinthe legalization, from 2004-2007, when everyone thought it was impossible. We got the law changed after a 100-year ban. It taught me that there is lots of junk science and junk law out there, and our predecessors didn’t always know better.
Another interesting recollection is about an older man who wanted to put the American flag on his beer cans. Not only that, he wanted Iwo Jima, and In God We Trust on the can to complete the patriotic theming. I patiently explained that TTB would not normally allow American flags on beer cans, turns it down regularly, and has at least a few rules directly banning it.
He was unimpressed and showed me another can and asked why our government will allow Russian flags but not the good old American flag. As we encountered various roadblocks, he would intermittently ask if he should go on the Rush Limbaugh program, or send some cash, to get this thing moving. I assured him there was no need to send extra cash, and assumed he was exaggerating, when he threatened to air it out on talk radio. No. A few months later, I picked up the phone and it was Fox News. “Your client is on the way into the studio and we want to verify a few things about his beer label.” A few hours later, TTB called to say the label is approved, flags and all. I would have liked to believe it was dazzling legal skills but in truth, it was good teamwork with a good client. I was sort of hoping he would go on to make a lot of money with this beer, but in short order Budweiser took the idea and ran with it, and I did not see too much action on my client’s product.
BB: Thinking about the label and formula approval process—both at the TTB and the predecessor ATF— in what ways has the process changed over the years? What’s gotten better and what still could use some improvement?
The main changes are that everything has moved from a paper-based to an internet-based system. When I started, in the late 1980s, I would actually walk over to TTB/ATF’s offices, at least five times a week, and talk directly with the decision-makers/reviewers, at their desk. It was a great way to learn. If they said no, they explained why, on the spot.
The old system was a bonanza for Beltway types. It didn’t make sense to mail the labels to Washington. It took a long time, and the government was quite picky in those days. So, you would be just as likely to get a sheaf of rejections, a month after sending your papers to DC, as approvals. And, the rejections might be as trivial and maddening as, there is a comma missing, or one letter is too small. On the other hand, if you sent the labels to a DC law firm, it could be expensive.
The internet gradually changed all that. The processing times were pretty quick, during that old-fashioned setup. You would show up, wait your turn, meet with the reviewer, and walk out with some label approvals, on the same day. Then, as COLAs Online (Certificate of Label Approval) rolled out, things got very slow for many years. Things are good right now. TTB has eased up on the trivialities and is processing most labels quite rapidly.
Another big change is that the system is quite a bit less personal than it used to be. In the olden days, you might sit with a Pamela Jamieson and go over some labels. These days, the rejections are fairly anonymous, you rarely meet with the reviewer, and even if you go in to TTB’s offices, there are many who work from remote locations.
BB: You’ve been front and center in the craft distillers movement. How is this burgeoning business changing? Is it here to stay? Are the entrepreneurs entering the business better equipped to succeed than in the past?
I am a little embarrassed to say, the craft boom was happening all around me, but I did not really notice it. Maybe I was too busy working.
When I started, I suppose there were several dozen busy distilleries in the US and now there are thousands. I remember when Sam Adams was a scrappy little upstart. It may be a lame comparison, but let me try comparing it to the iPhone phenomenon. First you saw it and wondered if it was overhyped, and whether the phenomenon would persist. Cut to ten years later and you can’t really imagine life without it, and it seems firmly entrenched almost to the point where it should have been obvious from day one.
Just like I think the free-for-all among Android, Apple and others is leading to an embarrassment of riches, for consumers, I do think the craft movement is having a similar effect in the libations space. All the fervor and ferment will lead to lots of great new ideas, and even the big stodgy companies to get on their toes, all to the benefit of consumers. It is certainly good for glass companies and liquor lawyers.
Are the barriers to entry too high? Well, they are certainly there, and alcohol beverages remain encrusted in old and new, important and dubious rules. Recent history shows that thousands of scrappy young companies have been able to form and thrive amidst all the barriers and competition.
BB: Finally, it seems to me that your practice has grown over the years in terms of people and expertise. What areas of legal advice/needs do you handle today that you didn’t in the past?
This is true. We are moving up the food chain so to speak. In my early years, I handled mostly labels and formulas, because that’s what I was handling at Buchman. Other lawyers handled things like trademark, for example. We did not really set out to diversify. My first 10 years on my own, confirmed that I could stay busy even within a fairly narrow niche (just federal, just TTB, just alcohol beverages).
But as time passed, I met talented lawyers and their skills drove the diversification. I met Dan (Daniel J. Christopherson), about five years ago and he adds IP law and beer law to our skill set. Lindsey (Lindsey A. Zahn) had a strong interest in appellation law, and wine law nuances, and later developed her skills as an FDA lawyer. Mike (Michael E. Volz) came along and wanted to see what he could do with retail law in the mid-Atlantic states.
At this point, I am pleased to say that we can handle most federal issues that arise for alcohol beverage companies. While we can handle all this in-house, we still reach out to other experts, to supplement our capabilities. In the past, we have reached out to EPA experts (pesticides) and former TTB experts. Just last week I collaborated with one of the top lawyers in the cannabis space, related to CBD-infused spirits. We have federal well covered, for beer, wine and spirits. We also have good coverage in NY, DC, Colorado, Virginia and Maryland. For the other states, we like working with in-state experts.
My goal is to provide excellent service to alcohol beverage companies; I am much less interested in getting bigger, especially if we can keep getting better without adding more people.
There are a number of outstanding law firms that specialize in alcohol in general and government approvals in particular. Abelman Frayne & Schwab, for example, is a leading full-service firm who I’ve used in a number of areas including intellectual property matters. They do outstanding work. But, Robert Lehrman’s expertise in the approval process leads me to often say, “Better Call Robert.”