United States: Can Water Actually Be Turned Into Wine?

Michael Newman is a Partner for Holland & Knight's San Francisco office.

What is "synthetic" wine? The concept is no different than any other synthetic food - but can it really be done for wine? Can water be turned into wine? A business in San Francisco, "Ava Winery," claims it can.

Ava chemically replicates wines, formatting them to smell and taste identical to classic wines by recreating their aromatic and flavor chemical compounds. Ava Winery, in their lab - they do not appear to operate a traditional legal winery - bypasses grapes entirely in the making of their wine, combining flavor chemicals with ethanol and water to reproduce the experience of wine, without replicating the wine production process.Ava reproduces wine chemically, molecule by molecule, without ever touching a grape.

According to their website, Ava Winery claims they have a proprietary methodology that analyzes and produces wine involving various analytical chemistry techniques including gas chromatography mass spectrometry, elemental analysis and other procedures to recreate the composition of a given wine. They then identify the critical components to the experience of that wine flavor and aroma to combine them into a product that approximates the experience of the original. They claim there is nothing in their wine that is not found in natural wine.

It's questionable whether a synthetic "winery" can legally call itself a winery at all, or even label its product as wine. Wine, by legal and regulatory definition, is the product of the juice or must of sound, ripe grapes. (Wine can also be made from other sound, ripe fruit, such as apple wine or from other agricultural products, like rice wine.)

A threshold legal question is whether or not a wine that is not made from fruit or other agricultural products, can it even be considered wine. Under the federal regulations, the synthetic product certainly could not be labeled as wine or grape wine. At best, if the lack of fruit or agricultural product can be legally overcome, the product would have to be labeled as "imitation wine" because of the fact it contains synthetic materials or because the taste, aroma, color or other characteristics of the product have been acquired by special treatment in such a manner to replicate the taste, aroma, color or other characteristics of normal wines. Because the wine is not made from grapes, it would not be eligible to be labeled by its varietal, such as chardonnay or pinot noir, or by appellation, such as Napa Valley or California, or have a vintage date. We are not talking here about that "2013 Napa pinot noir."

Synthetic wine cannot be made merely in a lab by scientists and then sold as such. If a business desires to produce any alcohol beverage including wine, it must obtain a permit from the federal government through an agency of the Treasury Department called the Alcohol and Tobacco Tax and Trade Bureau. Because any beverage containing at least 0.5 percent alcohol by volume is subject to federal excise tax, any facility producing wine, beer or distilled spirits must be bonded and pay tax to the federal government on what they produce. In the case of a wine product, this requires a federal wine producer's basic permit and the production facility to register as a bonded winery. Similarly, every state requires some type of manufacturing license and payment of state excise tax.

The regulatory process does not end there. Because it would not be making a natural wine but would be making what would likely be considered a nonstandard, imitation wine, the "winery" would need to submit a formula to the federal government detailing the scientific process for creating the wine and all the specific ingredients that go into creating the wine. The government is looking for the presence of certified or noncertified colors and artificial and natural flavors and whether there are any restricted or prohibited ingredients such as ingredients that have not been recognized by the Food and Drug Administration as "generally recognized as safe." A full disclosure of the process into making synthetic wine would be required. The federal government has the full authority and discretion to approve or refuse the formula. Only a permitted and bonded winery can file the formula.

Then, if approval of the synthetic wine can be obtained, a second step is required before the product can come to market. Federal regulations require that every wine containing at least 7 percent alcohol by volume be approved by the federal government prior to release from the winery and sale in the United States. (Standard table wines contain between 11.5 and 14 percent alcohol by volume.) Upon approval, the federal government issues a certificate of label approval. This is also a rigorous process by which the government reviews the wine label to ensure that the label contains certain mandatory information (such as a warning statement and the amount of alcohol in the wine) and the label accurately describes the contents of the wine. By this process (and the formula approval as well), the federal government will have a great deal of say in how synthetic wine can be made, how it can be labeled and how it can be promoted and advertised and brought or market.

All in all, there are going to be many legal challenges and obstacles to the production, marketing and sale of synthetic wine if this is going to be a product that has any true legs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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