The American Herbal Products Association (AHPA) has received reports that agents of the Florida Division of Alcoholic Beverages and Tobacco (ABT), possibly limited to agents from its Orlando office, have conducted inspections in the past two weeks targeting the retail sale of herbal tinctures on the basis that these products are alcoholic beverages. In at least three stores, inspections have resulted in warnings of noncompliance with Florida's alcoholic beverage laws.
Nonbeverage product exemptions
The charge that the ABT agents have made is that the retailer violates Florida law by selling herbal tinctures without a current valid alcohol beverage license. The warnings state that continued sale may result in criminal or civil charges being filed against the retailer, and retailers have removed herbal tinctures from their shelves as a result.
AHPA believes that these warnings represent a misunderstanding of the relevant Florida law. While this law defines alcoholic beverages to include "all beverages containing one-half of 1 percent or more alcohol," it specifically exempts proprietary and other products that are "unfit for beverage purposes."
Many AHPA members' tinctures are labeled as herbal supplements and have been approved as nonbeverage products by the U.S. Alcohol and Tobacco Tax and Trade Bureau in connection with obtaining excise tax drawbacks. In addition, some retailers manufacture tinctures that are not sold or represented for beverage use and are unfit for beverage purposes.
"Whether nationally distributed brands or made on the premises of a retail herb store, tinctures that are unfit for beverage use should reasonably be exempt from Florida's alcoholic beverage law," noted Tony Young of Kleinfeld, Kaplan and Becker and AHPA's general counsel. "We have now explained this to Florida ABT and have encouraged ABT to clarify with its agents that herbal tinctures not suitable for beverage use are exempt from ABT jurisdiction. We will continue our communications until this issue is resolved," added Young.
Guidance for retailers
AHPA has prepared a succinct guidance and suggestions for Florida retailers that sell herbal tinctures, available upon request from the AHPA office. Please contact AHPA at [email protected] to request a copy of this guidance.