Lawyers Bristle At State Plan To Target Bars Infusing Their Own Liquors

“I don’t think they’re enforcing the law as written,” Cheek says.  “They’re seeing something in the law that doesn’t exist.” Image credit Mike McCune, via flickr

“I don’t think they’re enforcing the law as written,” Cheek says. “They’re seeing something in the law that doesn’t exist.” Image credit Mike McCune, via flickr

Restaurants may have to take certain kinds of flavored cocktail off the menu under an old law the state’s Alcoholic Beverage Commission plans to start enforcing next month.  Some lawyers in the industry argue that’s not how the rule is supposed to work—but if they have to, they’ll ask lawmakers to change it.

The issue centers on who’s allowed to make infusions—where an ingredient like fruit soaks in alcohol to flavor it, often for several days.  Tennessee’s ABC says in looking back at a law from 2006, it found that in some cases, making infusions requires a distiller’s license, which restaurants can’t get.

In an email, the commission says despite what some people fear, the rule does not apply to drinks like margaritas or sangria.  But Nashville lawyer Will Cheek warns restaurants that infuse liquors don’t want to risk having their license pulled.

“If you’ve got pineapple and fruit sitting in a vat of vodka, you need to be pulling that stuff out—it needs to be gone by July 1st.”

When the Tennessee Hospitality Association sent a letter (PDF here) arguing the commission is misinterpreting the rule, Cheek signed on, representing a couple major restaurant chains.  If the commission won’t budge, Cheek says the matter could end up before state lawmakers next year.

What exactly is prohibited?

The Hospitality Association’s Matt Scanlan says the rule in question comes from a chapter of state law concerning distilleries, not restaurants that serve liquor by the drink.  Scanlan says the new interpretation is “endangering a huge part of the hospitality industry.”  Both Scanlan and Cheek worry what it means for restaurants that pre-mix drinks like sangria, putting citrus slices and other ingredients, including more alcohol, into wine.

Keith Bell, the director of the Alcoholic Beverage Commission, argues in an email such fears are overblown:

What is not a manufactured infused alcoholic beverage?  The following are just a few of the alcoholic beverage products not created through the manufacturing process of infusion and thus are not prohibited under the current law.  The preparation of margaritas in a margarita machine, the mixing and adding of fruit to sangrias, the making of a mint juleps and obviously the creation of mixed drinks at the bar prepared for immediate consumption by the consumer.

A Few Examples:

1) In order to make a margarita ask yourself if the tequila is being infused (blended/mixed) in a process whereby the extraction of chemical compounds or flavors are taken from plant material (fruit, vegetable, herbs, etc.) suspended in the tequila over an extended period of time (many days or even weeks)?

and/or

2) Is the margarita, which is being produced, capable of being consumed immediately?

If you answer “no” to question 1 then its not an alcoholic beverage product being created through the infusion process. If you answer “yes” then perhaps it’s a product being created through an infusion process.

If you answer “yes” to question 2 then, “It has been previously established that the mixing of tax paid spirits for immediate consumption is not considered processing. (26 U.S.C. 5002(a)(5) and 5002(a)(6)(B)).

In an email, Cheek suggests further questions remain about whether the new interpretation of the law essentially expands the legal definition of moonshining.  “What a can of worms,” he says.

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