I had my first sip of Kombucha in 1995, in the parking lot outside of a Grateful Dead show in downtown Seattle.
Compared with the obvious plethora of illegal substances for sale around me at that time and place, I find it a bit surprising that, 20 years later, the sour stuff in my Dixie cup has kept up with the rest of its cohort for the bulk of the legal and regulatory attention, especially since it is still the only one that can be sold in a grocery store. Nevertheless, here we are, on the cusp of 2016, and although no one is suing over the potency of the marijuana they bought (yet!), there has been, of late, a near-avalanche of filings flowing through the courts and through government agencies about the relative alcohol and sugar content of what has become a stunningly popular beverage.
The kombucha market is now worth about $500 to $600 million in the U.S. Much of the RTD part of that market is held by category originator G.T. Dave, who is now being sued by a veteran class-action/consumer protection lawyer with the M.A.S.H.-evoking name of Benjamin Franklin Pierce Gore.
Gore – who bears no relation to Alan Alda but is, in fact, a cousin of former Vice President Al Gore, has re-teamed with a pair of plaintiffs – whose names can be found as heading the class of a number of earlier class-actions he’s filed against other consumer product companies — to bring what they will undoubtedly classify as accountability and justifiable recompense for their having purchased a fermented product that didn’t indicate on its label that it had trace amounts of alcohol or imprecise sugar measurements.
Gore is a tough operator: working in some cases with the firms that brought the tobacco industry to its knees, he has filed dozens of cases against food firms, including Dole, Chobani, Ocean Spray, Frito-Lay and many more. He says he’s working against fraud and for transparency to consumers, but others in the business claim he’s making a career out of nuisance suits that force brands to pay him to go away over relative nits that are ginned up in the cloak of consumer protection.
Regardless, in the case of Kombucha, one of the issues at the heart of the proceedings – if a case actually goes to trial and isn’t quietly settled – will be the set of tools used to measure the alcohol levels in the product.
That’s important because many of the tools currently being used by both kombucha manufacturers, regulators, and, consequently, attorneys looking for a quick payday – are, according to scientists and interested parties, about as accurate as trying to tell wind speed by putting your finger in the air. The measurement standards – the particular devices, the time and place at which the measurement occurs, even whose responsibility it is to conduct and enforce testing results – are currently being evaluated both in court, by the relevant government agencies – the TTB and the FDA — and by a growing set of would-be representatives for the kombucha industry. The basic question is whether kombucha has too many different fermented gasses coming off its surface to be easily measured.
The notion that an entire industry’s in-store future could be at risk due to measurements that are likely to result in false positives obviously frightens the players in that industry, but it’s especially distressing to those members of the industry who are facing potentially expensive legal proceedings based on the current standards. One of those companies, Health Ade, is growing fast, but it’s relatively tiny. Even though it’s partially funded by the Coca-Cola Co. through its investment in First Beverage Ventures, Health Ade still could be hamstrung before it really even enters the race. As the biggest target in the category, meanwhile, GT’s has already faced several nuisance suits, and has an even larger lawsuit looming in California, where another lawyer alleges that the company intentionally misled consumers on both its alcohol and antioxidant contents.
Meanwhile, the lawyers in all of these cases aren’t letting on the exact testing methods that they’re using as the basis for their claims – so expect a lot of arguments about the relative merits of gas chromatography vs. refractometers, hydrometers, and near infrared technology in the future, to determine if .5 percent alcohol is really .5 percent, or just a gas cloud.
None of this is to downplay the potential negative effects on consumers who shouldn’t drink alcohol at all but find themselves ingesting trace amounts of the product due to poor manufacturing practice.
Another kombucha maker, Bill Moses, whose KeVita apparently is made in such a way that it doesn’t provide the living bacteria in the product the opportunity to metabolize it into alcohol, has been adamant that companies are taking risks if they don’t do a better job of putting controls in place. For one thing, recovering alcoholics who ingest even a tiny amount of alcohol can suffer a relapse, potentially a deadly one. For another, he notes, the industry’s track record is already a suspect one due to a widely-publicized recall that took place back in 2010.
Moses’ bona fides on the relapse front are genuine – he was, at one time, the owner and CEO of the Recovery Television Network, a cable channel devoted to those who are fighting their own addictions. And the issue he points out is a genuine one, as well, and reason enough for the industry to redouble its efforts toward precision in testing and labeling. But it’s also important that it get out of the way of regulatory agencies, who, while lumbering in their efforts to err on the side of caution, are nevertheless engaged in efforts to refine their view. Companies need to put their agendas aside and work with those agencies to put together reasonable standards, and they should do so quickly.
There are opportunistic reasons for this scrutiny, as well as defensive. Even if it turns out that most kombucha brands would need to go through control channels to make it to market, it shouldn’t be discouraging. That market is exploding, and the simultaneous growth of relatively low-alcohol sour beers and hard ciders should indicate that there’s a consumer who wants something with a taste profile close to kombucha and a willingness to seek it out even in the midst of a massive craft beer boom. Yes, that kind of change would cause complications with regard to distribution and put those brands in a much wider battle for shelf space, but it would also insulate the product from lawsuits and bring more clarity to the category.
And it’s not too far a step, either, particularly for a product that requires the maintenance of cold temperatures as part of its route to market. One of the biggest distributors of GT’s in the New York market, after all, is Dora’s, a dairy house that several years ago acquired the rights to sell beer as well as non-alcoholic products. The craft nature of kombucha and the increasing drift of many independent distributors to expanded cold-chain capacity will accommodate worthy brands, while also giving those who can’t create products that meet precision standards the opportunity to either raise their game or try to make it on a different playing field. As for those in the industry who would complain about having to meet another labeling standard or stare down more scrutiny, it would seem to me that a product class whose constituents often market themselves behind non-GMO or organic certification due to social and environmental concerns for generations down the line, or who aggressively note that they are gluten-free because they are supposedly concerned about the potential immediate discomfort they might cause those with gluten allergies might be willing to consider precise measurements of something that can have addictive or lethal properties – especially if they are covering up those properties simply for the purpose of building or maintaining market share.
It’s just a shame that it all has to happen when the sharks are circling.