The Wheat of Virgin Spaces

This year, after 95 years of prohibition, absinthe with less than 10ppm of thujone was finally authorised again for sale in the United States. The two key players behind this were the small family owned Kubler distillery in Switzerland - the same distillery, that two years earlier, had been instrumental in the re-legalization of absinthe in Switzerland itself - and a new start up in the US called Viridian Spirits. Who did what is a contentious subject, but it’s certainly undeniable that Kubler were the pioneers, starting their application as long ago as 2003.The informal account below of the entire 4 year process is based on an email interview with Robert Lehrman of Lehrman Beverage Law, PLLC, the law firm who assisted Kubler in their protracted negotiations with the TTB and the FDA.

When did the whole process begin?
Kubler of Switzerland set out to legalize quality absinthe in the US in 2003, a short time after working to change the Constitution in Switzerland to once again permit the legal manufacture and sale of absinthe there.

How did you as a lawyer get involved?
I began specializing in US alcohol beverage law in 1988. In the late 1990s I worked on Absente Liqueur; this is the closest to traditional absinthe that US law would allow at the time. In 2003 a Texas-based alcohol beverage importer asked me to seek approval for Kubler Absinthe. It was obvious that it would be a giant struggle, and I tried to convey this to the Texas importer (Dan Dotson) and Kubler. To Dan’s credit, he was undaunted. As a good Texan, he didn’t want to hear about all the impediments. A month later I sent a bill for the first few hours of work. Dan expressed dismay. In turn, I was surprised that Dan thought a few hours was too much, and so obviously we had some talking to do. We talked it through and came to an understanding that held up well over time; it gave me an incentive to spend as many hundreds or thousands of hours as may be necessary, so long as there was a good chance we would prevail eventually.

What were the initial steps taken? And how was the product formulated?
During 2004 we made good progress toward obtaining TTB approval for the traditional Kubler Absinthe formulation. A few weeks after submitting samples and documentation for analysis at TTB’s laboratory, and after just a few discussions, we were delighted to learn that TTB had confirmed that the product was safe, and that TTB would not require any changes to the formula. This was especially critical because Kubler was not willing to change the traditional formulation. Kubler Absinthe dates back to 1863 and has been made according to the same recipe by four generations of the Kubler family, in the Val-de-Travers. [ For an example of a pre-ban circa 1910 bottle of Kubler previously sold by Oxygenee Ltd, see our Vintage Absinthe section ] Based on my available information, this is more than two and a half years before TTB agreed to allow any other absinthe (with Artemisia absinthium, fennel, anise and thujone). But there was one serious problem. TTB would not allow it to be labeled as “absinthe.” TTB said it was an illegal drug term. On the other hand, Kubler was, as I think you can imagine, not interested in removing this term or calling it something like herbal liqueur.

So the actual use of the word “Absinthe” was a bigger problem than the thujone content?
Yes. We spent the next two years evaluating whether to use a term slightly different from absinthe, or take out the thujone, or to get litigators involved. The first two ideas would have been temporary measures only. But Kubler was not interested in selling a compromise product. Peter Karl (Kubler’s export manager) said “we will never call a horse a pig”.

You’d reached a kind of impasse. How did you move forward?
By 2007 the project had chewed up thousands of hours of my small law firm’s time. I decided that we had to find a way to win or lose and be done with it, or risk running my practice into the ground. I consulted with several big-time FDA experts and litigators. We had assembled a considerable budget, but many of the other lawyers advised that the odds were not good.Instead, we turned to the Swiss Embassy. We thought this might help because, based on the prevailing demonization, it seemed natural that TTB would have a fairly strong and negative view of those trying to “cash in” on this “dubious” stuff. The debonair Embassy person was very skilled at removing this impression. He was able to explain that absinthe is newly legal in Switzerland, Kubler is an old-line, respected, family business, and the Embassy would like to see this fine Swiss culinary product approved unless there is a good reason otherwise.Over several weeks, we pressed for a meeting in Washington. In February 2007 TTB agreed to meet with us. TTB had about 10 officials at the meeting, including a TTB attorney and Gracie Joy (in charge of spirits labels and formulas). On our side we had Peter Karl, Urs Broennimann from the Embassy, Dan Dotson, myself and my law clerk. We made our points for about two hours. TTB listened politely and said little, even when we raised questions. TTB did not agree or disagree when we explained that it was safe, and that it complied with all duly promulgated rules from TTB, FDA and Customs. Then, without fanfare, the TTB person in charge said “we will not allow absinthe to be larger than the brand name.” Wow. With that we had almost everything we needed. We spent the next 45 minutes trying to ensure that we heard correctly, and confirming the details. Peter and I rushed back to my office and got on the phone with the graphic designer. We implemented several TTB recommendations (they were mostly peripheral) and re-submitted the label the same day. TTB moved slowly and cautiously. They didn’t like the bold print on the back label (absinthe in bold). They said 33.8 fluid ounces should be 33.82. Each little back and forth took a few weeks. Near the end, TTB raised concerns about the thujone. I suggested that TTB should qualify the label approval by requiring that the “finished beverage must be ‘thujone free’ as per 21 CFR 172.510.” We got label approval a few days later. It took extra time because Kubler refused to compromise anything beyond font sizes. Various press accounts and other evidence suggest that other brands may have made critical changes, such as lowering their thujone level or in the case of Absinto, actually avoiding the term “absinthe”. Peter Karl’s instructions to me were that “we will not compromise the integrity of authentic Swiss absinthe.”From the point of our meeting and after, TTB was incredibly open-minded about this topic, and gave us lots of time and attention. TTB gave us all the assurances we needed, in the meeting, so that Kubler could go forward confidently and ramp up production, for the US market. TTB approved another brand within a few days after Kubler’s meeting at TTB. As soon as the policy shift became public, in this manner, we accelerated our efforts to get formal, public, label approval. Three years after the initial submission, TTB approved the Kubler label.

What do you think were the principle factors that persuaded the TTB to change its view on legalization?
In addition to showing it’s safe and compliant, one of our main arguments was that TTB’s continued refusal to allow Kubler in no way means absinthe will not come in. It only ensures lawlessness (untaxed, unregulated absinthe with no formula approval, no label approval and no government warning). Google made this very easy to prove, showing thousands of illicit sources. TTB seemed concerned (a bit surprised) and certainly did not minimize this issue. We asked what they have been doing to stop the flow of illicit absinthe. They had very little to say. We suggested that there may be no better way to foster compliance than to cooperate with the people like Kubler who are trying to play by the rules.A few days later, TTB said they had checked with FDA and it may be better for us to wait, until FDA decides how to handle this. Fully aware of the FDA situation, we explained that we don’t want to wait any more and we are confident Kubler complies with all the relevant laws and regulations. A few days after that, we cleared the way with US Customs. At no point did TTB suggest (or demonstrate) that Kubler conflicted with the rules or regulations. That is, it was not necessary to change any laws or regulations or even interpretations. It was only necessary to change TTB’s mindset. For decades “everybody knew” (wrongly) it was bad, illegal stuff - without looking at it in a fair, clear-headed manner. It strikes me as a cautionary note about governmental and human institutions in general (capable of massive self-deception and illogic). At one point TTB summarily urged us to “delete all references to absinthe because it’s a drug term (no matter how spelled).”There were very few Eureka moments. Instead it was hundreds of emails, dozens of phone calls, a few meetings – over the span of four years and thousands of hours. Also, it was knowing deep down that it’s all a huge misunderstanding, a historical accident not supported by facts or logic or law.I feel strongly that Kubler did most of the heavy lifting – in the US and in Switzerland – to put an end to the nonsense. I think they deserve credit for doing something important, and for paving the way for all the other brands sure to follow. It’s possible that several other companies helped. Some are saying they spent a lot of money lobbying FDA in late 2006, but the currently available information shows that FDA had no real qualms about this after 2004. Also, I do not understand why there should be fanfare about the realization that pre-ban absinthe had only a low level of thujone. Kubler knew this and took it as a given since minute one of our project; it was never an issue. FDA and TTB never said otherwise. It may be important as a matter of history but has no bearing on the legal situation in the US. A discovery that pre-ban absinthe had very little thujone would have almost nothing to do with TTB/FDA relaxing the ban.

So thujone itself was a surprisingly minor issue in the whole process?
There was almost no discussion about thujone (among TTB and Kubler). The FDA rule says thujone can’t be over 10 ppm. This was obvious since the initial inquiries, going back at least 10 years. Back in 2003, Kubler said fine, it’s not a problem because it’s well within the normal range (as subsequently shown by Lachenmeier, yourself and others).At many stages, TTB was seemingly more concerned about the “wicked” term “absinthe” as compared to concerns about thujone. As far back as 2004 we pressed TTB to test the thujone and all other aspects of Kubler and confirm that all is within federal specifications; there was very little discussion about it thereafter.Also, there was no real need to have a discussion about the thujone because TTB has its own laboratory, about 15 miles outside Washington, with about a dozen beverage and flavor chemists. They were quite capable of figuring out, for themselves, that the product at issue was within all pertinent limits.Throughout the four years, we knew we could probably bring absinthe to the US at almost any point, if we made enough compromises. But Kubler preferred to be patient for just a few more years, after already waiting more than 90 years, and it was a thrill see Kubler Swiss Absinthe come back to life, in the US, without compromise. The new importer (Altamar Brands, LLC with a lot of industry heavyweights) is on course to roll it out nationwide.

More information here, including supporting documents and the most recent TTB guidelines on absinthe.