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The Bitter End for Bitters at Tennessee Grocery Stores
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The Bitter End for Bitters at Tennessee Grocery Stores

09.30.14
We were baffled by the Tennessee Alcoholic Beverage Commission's recent instructions to grocers that bitters could only be sold at retail liquor stores. This week, the ABC provided an explanation that makes sense.

We still disagree with the ABC reasoning, but at least we know how far the ABC will go.

Buck Owens penned a classic hit that catches our sentiment:

The flame of love was burning high we vowed to never let it die
But now you're growing tired of me so let's agree to disagree
Let's agree to disagree there's nothing left for you and me
You won't be happy till you're free so let's agree to disagrees

Those of us knowledgeable of obscure federal liquor laws understand that bitters are "non-beverage." Scope, peppermint extract and cooking wine are non-beverage products that contain alcohol. Unlike alcoholic beverages, non-beverage products are not regulated and taxed like whiskey and vodka.

The simplest explanation of whether a product is non-beverage is "can you drink it?"

Most flavorings like peppermint and vanilla are around 190 proof. Your local grocer stocks hundreds of non-beverage products with alcohol.

Non-beverage is the federal standard for determining whether a product is taxed like wine or whiskey, or is exempt from federal taxes. Generally, states follow the TTB standards. If a product like cooking wine is non-beverage under federal law, it is not an alcoholic beverage under state law.

Recently, the Tennessee ABC instructed grocers to pull bitters from shelves. According to the Tennessee ABC, bitters can only be sold by retail liquor stores.

We disagreed with the ABC finding, in large part because of concern that hundreds of non-beverage products containing alcohol could be deemed contraband. Would the ABC declare that Scope could only be purchased at a liquor store?

We are pleased with the ABC explanation that bitters are unusual under state law.  ABC Staff Attorney Josh Stepp contacted us today to explain that the treatment of bitters as alcoholic beverages by the ABC was based on Tenn. Code Ann. § 57-3-101(17), which specifically names bitters as a product of "rectifying."

We agreed to disagree.  But at least, the ABC will not be banning other non-beverage products from grocery stores.

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