Sounds like a good title for a Robert Ludlum novel, doesn’t it?
There was some concern in the Viridian camp that the account from Kubler’s lead attorney we published earlier didn’t fully reflect the process as seen from their perspective. Jared Gurfein, the Virdidan CEO, has now given the Virtual Absinthe Museum – exclusively – a parallel account of the legalization process from the Viridian point of view.
Kubler undeniably were involved for the legalization process far early than Viridian were, equally undeniably though it was Virdian’s Lucid absinthe which was first to market in the US, a few months ahead of Kubler.
It appears that the TTB pursued entirely independent negotiations with both companies simultaneously, with hard-won concessions to the one company not necessarily immediately resulting in similar concessions to the other. Ultimately of course this is academic – the important thing is that thanks to their joint efforts, the door to legal absinthe sales in the US has at last been re-opened.
Here is Mr Gurfein’s account:
History of Viridian Spirits
In early 2006, while working as a corporate lawyer in New York, I formed Viridian Spirits with a close friend (Jonathan Bonchick) who is third generation in his family in the U.S. spirits industry. I had lived in Europe and during that time had become entranced by Absinthe. So when we formed our company, our goal was simple: revive Absinthe in the U.S.A. We formed a partnership with a couple of close friends, funded the company sufficiently for a long legal fight, and retained one of the most respected lawyers in the U.S. spirits industry – Vince O’Brien (former general counsel of Seagrams) – to help us in our task. And of course we partnered with Ted Breaux and the Combier distillery to produce our product.
The Legal Process
In early 2006, our attorney made some informal inquiries with the U.S. Alcohol and Tobacco Tax & Trade Bureau (TTB) about the possibility of bringing absinthe into the U.S. TTB quickly informed our lawyer’s staff that absinthe was ‘prohibited’ from being imported. Indeed, an official at TTB told our attorney that “Absinthe is not allowed, and whenever it comes up, it usually just goes away”.
Early in 2006, before finalizing things with Ted, I had also approached Yves Kübler and Peter Karl of the Blackmint distillery (Kübler Absinthe)- people for whom I have great respect. I emailed Peter Karl asking whether his distillery would be interested in working with us. In his response, he said that he had been approached by importers for a few years and had fought with the government but, that as of early 2006, he still did not have any permission to import Kübler. He even went on to ask me to keep him advised if I had any better luck with the government.
Between the government’s dismissive response, and Peter Karl’s email, we could only conclude that we were at square one with the government. Certainly others had made the effort, but there was very little we could see of any progress in early 2006.
However, we were determined to open that still sealed door. We engaged in a very expensive, persistent legal campaign with TTB. Lucid’s formula itself was not problematic. Indeed, Wormwood has long been a permitted flavoring ingredient in alcoholic beverages (since the 1970′s), and, like many pre-ban absinthes, Lucid’s thujone level was below 10 ppm. But the TTB had a problem with the very concept, and hence, labeling of a product as an “Absinthe”. They believed the term “Absinthe” was code for ‘drugs’ regardless of what actually was inside the bottle.
To combat that rigid thinking, despite being repeatedly turned away, we overwhelmed TTB with information in a campaign that we stepped up in the summer of 2006 that included nearly daily contact with them. First, we presented historical information about the real nature of true, Belle Époque Absinthe and the wine industry’s campaign to discredit it in the early 1900′s. We sent videos prepared by and featuring Ted Breaux, statements filled with information, and even a legal brief I authored showing TTB that there did not exist a single rule, regulation or law in the U.S. that actually banned the labeling or use of the term “Absinthe” in any way. We went so far as to prove the 1912 Food Inspection Decision that originally banned absinthe was repealed in 1938 by the creation of the FDA and had not been enforceable even prior to 1938.
After countless hours of real negotiation and discussion, we began to see the light of day. First, in October 2006, our formula for Lucid was approved without much incident. By then we had already been discussing the label for months. Once we submitted it formally, we were told that because of the research and materials we presented, TTB had decided to do a full internal assessment of the concept of absinthe, and would get back to us soon.
Finally, after continued, near daily contact with TTB through the remainder of the winter, we had a final meeting in February 2007 in which we at long last were able to settle the open label issues, including the manner in which we could actually use the term ‘absinthe’. Nearly every element of the label was discussed, and most of our original label submission was approved. The key was they required we add a word next to “absinthe” to distinguish it from any negative imagery. At the meeting, we proposed ‘Traditionelle’ but they said they needed time to consider it and then rejected it shortly after. Next, at the suggestion of Combier and Ted Breaux, we proposed ‘Supérieure’ – this actually took place in a multi-email exchange among TTB officials, our attorneys and me. Upon receiving an email approving the term, we immediately filed a trademark application for the phrase, which is still pending at the US PTO. About a week later, after that final issue was resolved, on March 5, 2007 TTB granted our formal approval, and Lucid officially became the first genuine absinthe legally allowed to be imported into the U.S. since 1912. We unveiled Lucid in April at the WSWA wholesaler show in Orlando, and sales began in May in New York City.
The real credit for all of this goes to Ted Breaux for the role he played with our company, both in creating Lucid, as well as in the support he gave us in our negotiations with TTB – TTB acknowledged that they were very impressed with Ted and several officials knew of him and had researched him. I also want to acknowledge the early perseverance of Yves Kubler and Peter Karl which surely helped our quest, having put the TTB on notice that this was not going to just ‘go away’, and they deserve credit for making that first, early push. I am glad that their product was the next to come to market, again representing genuine absinthe, and not a cheap imitation. And finally, a great deal of credit should go to our attorney, Vince O’Brien, and one of his former staff members, Deborah Ringo, who did most of the daily groundwork spending countless hours wrestling with folks at TTB. Deb is the unsung hero in all this, who deserves a great deal of credit for all the work she did.