Preparing for Evolving Cybersecurity Threats

The recent ransomware attack against the Duvel Moortgat Brewery demonstrated the very real risk that cybersecurity incidents pose to the alcohol industry, reportedly halting operations for several days at four of Duvel Moortgat’s facilities in Europe and the United States. This attack comes after other major alcohol producers experienced disruptive ransomware attacks in the last several years. Incidents like these can be devastating for a company’s business and reputation, and hackers’ strategies are constantly evolving to maximize their damage. But companies can be prepared with an information security program designed to prevent successful attacks and quickly respond if one occurs. Experienced partners such as McDermott are critical resources throughout this process, enabling companies to better update and fortify their security programs.

The Growing Threat of Attack

Hackers have extorted companies through ransomware attacks for decades, but hacker strategies have evolved to increase the risks to companies, often resulting in a larger ransom for the hacker. A “ransomware” attack traditionally refers to a strategy in which a hacker gains access to a victim’s computer system, encrypts the information on those systems and demands a ransom payment to unlock that information. Victims may try to avoid paying the ransom by restoring most of their systems from backups, but hackers have recently introduced additional strategies that can complicate that recovery. Today, hackers often try to steal the victim’s information before encrypting it on the victim’s system, so that they can sell or publish the information if the victim refuses to pay the ransom. Hackers also may try to “corrupt” backups so that the victim cannot effectively restore its system without the hacker’s assistance. One ransomware group, AlphV, says that it also reports its publicly traded victims to the US Securities and Exchange Commission if they don’t pay the ransom.

Determining whether to pay a ransom is a complicated decision, with either choice presenting notable risks. The ransom will likely be expensive and must be paid without any guarantee that the hacker will make good on its promises. The decryption software or key may not work, or the hacker may not delete information. One hacking group, LockBit, is believed to save victims’ information after their ransoms are paid despite promising to delete it. The hacker may be willing to negotiate a lower payment amount, but doing so takes valuable time while the victim’s systems likely remain nonfunctional. The hacker may be under sanctions, in which case paying the ransom would be illegal and could result in a fine for the victim. Paying the ransom rewards the hacker, which may increase the risk that the hacker targets the victim again. There is rarely a clear path back to safety after a successful breach, so it is important that the victim make an efficient, informed decision.

Opportunities for Preparation and Prevention

Companies can minimize these risks by maintaining a security program designed to prevent incidents from occurring and to effectively respond if they do occur. The security program should utilize administrative, technical and physical security policies [...]

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So, You’ve Been Sued in a Labeling Class Action. Now What?

Many alcohol beverage industry clients are faced with lawsuits attacking product labels. These lawsuits can be frustrating for clients, particularly when the labels at issue were previously approved by the Alcohol and Tobacco Tax and Trade Bureau (TTB). But approval by the TTB does not insulate a company from a lawsuit under various state consumer protection and unfair trade practices statutes.

Try as companies may, even products that purport to conform with US regulations can still be characterized as “misleading” and “deceptive” by crafty and ambitious plaintiffs’ lawyers across the United States. Making matters worse, these lawsuits are typically styled as putative class actions, meaning the cases are brought by one or two alleged purchasers of the product, suing the company on behalf of all US purchasers of any allegedly deceptive product produced by the company, which makes both the defense of these suits as well as the potential damages quite costly.

An entire cottage industry of plaintiffs’ lawyers in the US focuses on just these types of putative class actions targeting the food, alcohol, beverage and packaged goods industries. Indeed, they file hundreds to thousands of new cases each year. So, what should a company do when facing allegations that a product label is deceptive or misleading?

In this post, we answer that question and provide an overview of the typical process in one of these cases. We also offer some practical tips to best protect your company if you are facing a threat of a lawsuit or if a class action lawsuit is filed against you.

BEFORE THE LAWSUIT IS FILED: PRE-SUIT DEMANDS

Many plaintiffs’ lawyers focused on suing alcohol industry clients send pre-suit demand letters, or letters asking for label changes and lofty payments in exchange for the plaintiff’s lawyer not filing a lawsuit. While one primary purpose of the pre-suit demand letters is to attempt to extort or extract a settlement from a company, there is another common purpose to these pre-suit demands. Many state statutes either require pre-suit notice or otherwise increase the types of recovery a plaintiff can pursue in a lawsuit if the pre-suit notice is served, such as in California.

If you receive a pre-suit notice demanding changes to your product label and/or payment of money, you should immediately engage a lawyer to step in and represent you. Additionally, a pre-suit notice often includes a demand to preserve documentation and evidence related to the allegations in the demand letter. If such documentation is not preserved, that can create significant issues for companies in a lawsuit.

The pre-suit notice period also offers an opportunity to persuade the plaintiff’s lawyer that there is no good faith or valid cause of action based on the allegations in their letter. To the extent those efforts are successful, you may avoid a lawsuit altogether. To the extent there is disagreement about the validity of the allegations, the notice period allows time to negotiate a pre-suit resolution on an individual basis which can be much cheaper than defending [...]

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TTB Ramps Up Tax Audits and Enforcement

The Alcohol and Tobacco Tax and Trade Bureau’s (TTB) Office of Field Operations is responsible for ensuring industry members comply with the Federal Alcohol Administration Act, the Internal Revenue Code and all related regulations. It is divided into three groups: the Trade Investigations Division (TID), the Tax Audit Division (TAD) and the Intelligence Division.

Many industry members are most familiar with the TID, as it is comprised of investigators who are responsible for enforcing compliance with the trade practice laws and maintaining a level playing field. The TAD may be less familiar, however, as it is comprised of auditors who are responsible for ensuring payments of excise taxes and compliance with the laws and regulations in a manner that protects revenue and prevents unlawful activity in the commodities that the TTB regulates. The TAD works with other areas of the TTB and has the resources to assist in the investigations of underpayment of tax or other financial areas that relate to the laws and regulations enforced by the TTB. The TAD also performs random audits, which means that every industry member is susceptible to an audit.

Over the past year, the TAD has issued tax-related citations for failure to timely file and/or pay taxes, use of inappropriate tax rates (largely stemming from the improper use of reduced tax rates under the Craft Beverage Modernization Act (CBMA) and failure to maintain adequate records, among other violations. In 2023, the TTB resolved these violations by accepting offer-in-compromise (OIC) settlement payments from the targeted industry members, collectively, to the tune of approximately $850,000.

Based on a review of the OICs which are published on the TTB website, there were a wide range of tax-related violations last year, including:

  • Failure to timely file and/or pay taxes and reports. These failures accounted for nearly 70% of all OIC violations. In these common infringements, the permittee submits their reports or taxes late. The causes for a violation can range from (1) a simple late submission, even 1-2 days late; (2) filing the tax return without paying the taxes; (3) late payments due to processing times; or (4) a change in filing frequency. It is important to ensure that industry members’ reports are filed on time (even a day late is sufficient to warrant a violation) and that the taxes are paid promptly.
  • Use of inappropriate tax rates. There are two main categories of tax rate violations: (1) inappropriate use of reduced tax rates or credits, largely through improper use of the CBMA, and (2) inappropriate categorization of the product (commonly wine). An accurate determination of the product’s tax class is crucial to avoiding these violations, as is consideration of your eligibility (and continued eligibility) for CBMA-reduced rates or credits. We saw a significant increase in tax-related enforcement due to violations from acquisitions completed in the first half of 2023 which impacted eligibility of the reduced tax rates for the entity as a new member [...]

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Navigating Hemp THC Beverages

Nonalcoholic beverages infused with delta-9 tetrahydrocannabinol (THC) derived from hemp (aka intoxicating hemp beverages) are becoming increasingly popular for consumers looking for an alternative to alcohol.

With major alcohol retailers like Total Wine entering the cannabis space, alcohol beverage producers may be looking for opportunities to leverage their existing experience in manufacturing, marketing and distributing alcohol beverages towards the emerging intoxicating hemp beverage market. While intoxicating hemp beverages are arguably legal pursuant to the Agriculture Improvement Act of 2018 (2018 Farm Bill), risks remain under federal and state food and drug laws. Accordingly, beverage producers looking to enter this emerging market should become familiar with the ambiguities involved.

Federal Treatment of Intoxicating Hemp Beverages

The 2018 Farm Bill removed hemp, defined as cannabis (Cannabis sativa L.) and derivatives of cannabis with extremely low concentrations of delta-9 THC (specifically, no more than 0.3 percent THC on a dry weight basis), from the definition of “marijuana” in the Controlled Substances Act. The federal government defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Accordingly, products that meet the definition of “hemp” may be marketed and sold in the United States and are no longer classified under federal law as illegal drugs.

How Is Hemp Regulated?

Under the 2018 Farm Bill, the US Department of Agriculture (USDA) has been assigned to regulate hemp production.

However, any hemp-derived foods, including beverages, are subject to regulation by the US Food & Drug Administration (FDA) under the Food, Drug, and Cosmetics Act (FDCA). While the FDA has largely avoided enforcement actions against such products, focusing most of its efforts on products making unsubstantiated medical and therapeutic claims, it has clearly concluded that it is a prohibited act under federal law to introduce any food in the market to which THC or cannabidiol (CBD) has been added. Therefore, the risk of federal enforcement remains until the agency changes its stance towards THC as a beverage additive.

State Regulation

While the federal government has been inactive in this space, the legal status of intoxicating hemp beverage products varies significantly by state. On the one hand, several states, including Minnesota, have expressly legalized the inclusion of hemp-derived cannabinoids in beverage products, with clear regulations regarding testing, labeling, advertising and more. On the other hand, some states have legalized hemp beverage products but lack a robust regulatory framework – leading to a mostly unregulated, laissez-faire market.

Further, many states fall into a grey area when it comes to the legality of such products. Some of these states have legalized hemp along the lines of the 2018 Farm Bill but have not officially opined on whether it can be added to beverage products, while others do not mention hemp products at all. A subset of states has expressly legalized hemp [...]

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Mixed Beverage Definition Gaining Traction in Indiana

Indiana is one step closer to passing legislation that would allow popular liquor-based, ready-to-drink products to be defined as “mixed beverages” that currently fall under the definition of liquor in the state.

An Indiana House of Representatives committee advanced House Bill 1025 earlier this month. The bill would add a new section to Indiana Code 7.1-1-3-26.2 that would read:

“Mixed beverage” means a prepared cordial, cocktail, or highball that is in a can or container that holds not more than twenty-four (24) ounces of the beverage and is a mixture of: (1) whiskey, neutral spirits, brandy, gin, or another distilled 8 spirit; and (2) carbonated or plain water, pure juice from a flower or plant, or other flavoring materials; that is suitable for immediate consumption and contains not less 12 than five-tenths percent(0.5%) of alcohol by volume and not more 13 than fifteen percent (15%) of alcohol by volume.”

The definition change would also allow for beer wholesalers, who also hold a wine license, to sell mixed beverages in Indiana. As such, there are many opposing the bill. We will continue to update the blog when any changes are made in the state.




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