By Jay Leonard and Jasmine Rodenburg
The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently published a circular clarifying its position on voluntary beverage recalls for adulterated or mislabeled products.
The TTB’s circular first makes clear that just the sale or shipment of adulterated and/or mislabeled products is a violation of the Federal Alcohol Administration Act (FAA Act) and the Federal Food, Drug, and Cosmetic Act (FD&C Act). Both types of violations expose the industry member to sanctions (like suspension or revocation of permits). However, the TTB likewise makes clear that a beverage recall can be voluntarily initiated by an industry member. And the TTB will take into account, in determining any sanction, the steps that the industry member took once the mislabeled or adulterated product was identified.
To make this sanction determination, the TTB will “assess both the progress and final outcome of the recall through voluntary effectiveness checks conducted by the industry member and appropriate TTB investigations and audits.” The TTB will also request a final recall status report to verify the recall’s effectiveness after completion. That process will likely include a request of the following information:
- Dates customers were notified and how they were notified, including a sample of the notification(s) sent;
- Number of customers notified;
- Number of customers responding;
- Any related consumer complaints or reports of adverse health effects received;
- Quantity of recalled product returned or accounted for, when this occurred, and final disposition of the recalled product;
- Details of your voluntary recall effectiveness checks; and
- Procedures and safeguards put in place to prevent any recurrence of the issue.
The TTB’s circular helps industry members know what to expect if they encounter a problem with adulterated or mislabeled products and provides guidance on what industry members can do to solve those issues voluntarily and quickly when they are discovered.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.
November 22, 2017