On or about September 17, 2009, Flying Dog Brewery requested permission to sell Raging Bitch beer in Michigan. About two months later, the Michigan Liquor Control Commission denied the application, asserting: “The Commission finds that the proposed label which includes the brand name ‘Raging Bitch’ contains such language deemed detrimental to the health, safety or welfare of the general public.”

Flying Dog filed a lawsuit last month, in the U.S. District Court for the Western District of Michigan. In a later post, we’ll review the state’s rationale. But for today, we highlight a few of the juiciest portions from the pleadings submitted by Flying Dog (and attorney Alan Gura). The complaint asserts:

Regrettably, the Michigan Liquor Control Commission and its members have taken it upon themselves to control not merely alcoholic beverages, but speech as well. Acting as a censorial board, Defendants wield state authority to impose their personal tastes as a prior restraint against core First Amendment expression that happens to be placed on beer labels.

The supporting memorandum goes on to cite the Staub case wherein the U.S. Supreme Court said:

It is settled by a long line of recent decisions of this Court that an ordinance which … makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

The memorandum argues that the ban is too broad; “preventing all adults from all access to Raging Bitch [in order to protect some children] is hardly a narrowly tailored restriction.” The Butler case calls back from 54 years ago to remind us “by quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence. … Surely, this is to burn the house to roast the pig.” The brewer’s memorandum concludes:

The First Amendment is incompatible with the notion that government regulators may sit in judgment of a beer label, scrutinizing it for conformance to their personal views on what sort of expression might disturb delicate sensibilities.

If your tender sensibilities are not yet disturbed, you can find other such labels here.

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Does the government check for political correctness when reviewing beer labels? Should they?

Here is Ghettoblaster beer. Is it politically correct? Does it or should it offend anyone? Is it any worse than Ghetto Fabulous wine?

One option is to get into a snit and lay on the outrage. Another option is to learn from it. Does “ghetto” really deride or refer to one race only? Maybe, but not the one you may think of first. Here is the origin:

1610s, “part of a city to which Jews were restricted,” especially in Italy, from It. ghetto “part of a city to which Jews are restricted,” various theories of its origin include: Yiddish get “deed of separation;” …  or It. borghetto “small section of a town” (dim. of borgo, of Germanic origin, see borough). Extended by 1899 to crowded urban quarters of other minority groups (especially blacks in U.S. cities). As an adjective by 1903 (modern slang usage from 1999). Ghetto-blaster “large, portable stereo” is from 1982.

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Holy smokes, change really is afoot at TTB. I was startled to see these wine labels recently, with various and sundry famous politicians emblazoned all upon them, and not in the most flattering light. I suppose there is some extra latitude for parody- or caricature-type speech, and there certainly is or ought to be latitude as to political speech. But often in the past, TTB has disallowed presidentially-oriented labels. Just two years ago, the line was drawn here, as to President Obama, and this one seemed to go too far.

The abstraction, in these caricatures, seems to help, as does the absence of the full names. The Horizon Cellars Winery, of Siler City, North Carolina has a large series of the labels depicted above. We already pointed to various labels with Former President George Bush and Sarah Palin in the past, so today we elected to highlight Former Vice President Dick Cheney, President Barack Obama, Vice President Joe Biden, and Former President Bill Clinton.

But there are other reasons to revel in these labels. Any discussion of Joe Biden would be embarrassingly remiss without a fond recollection of that storied day when Joe Biden washed his Trans Am, in cutoffs and no shirt, out back behind the White House.

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FDA handed a giant gift to Red Bull here.

The FTC handed a humongous present to Red Bull here.

Other actions are expected imminently, as legions of other regulators rush in to exaggerate the dangers (it looks like soda, it’s “loaded with caffeine,” it’s like a “plague” and “toxic”) and ignore evidence to the contrary. This follows many state actions in recent weeks. Presto, problem solved! We eagerly await the evidence that young people cut back on alcohol, or cut back on co-consumption of  alcohol with caffeine. We hope it’s better than the current leading study; it purports to highlight the dangers of the pre-mixed products such as Four Loko, Liquid Charge, Joose and scores of others — without ever having examined any such products. Instead, the O’Brien study reviewed products so different they are not even within the scope of yesterday’s governmental actions (none of which, after some dexterous sleight of hand and misdirection, stopped it from instigating the above actions).

We believe caffeine and alcohol raise plenty of important public policy issues, whether they are combined or not, and they warrant serious deliberation. But many of the deliberations so far reflect political pressures more than an even-handed review.

November 18, 2010 Update:  TTB lands another blow, against caffeine added to alcohol beverages, here.

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Port Brewing LLC recently got its wit caught in a wringer. The beer label depicts a witch being burned at the stake. Various wiccans, pagans, shamans and others were not amused and The New York Times was there to cover it. About a week before Halloween, the Times article quoted an offended person thusly:

“Can you imagine them showing a black person being lynched or a Jewish person going to the oven?” she wrote. “Such images are simply not tolerated in our society anymore (thank the Goddess) and this one should not be, either.”

To witch which the brewer responded:

We have been accused of inspiring violence against women, and we have been compared to the violence in Darfur. … It has run the gamut from people saying politely, ‘This is offensive to pagans,’ to people saying we are responsible for all that is wrong in the world.

Port seems to be in the process of changing the label. Port’s co-founder said he was “‘totally in favor’ of changing the label and that he and his co-workers had been ‘ignorantly unaware of the mistake’ they had made.”

The brewery explained that, far from being an attack on women:

Witch’s Wit is in a line of Catholic-themed beers, like Inferno Ale and Judgment Day, conceived in the spirit of gentle satire by Tomme Arthur, another of the brewery’s owners. Mr. Arthur says he is “a recovering Catholic.” … [The company also said it] “would really like to have some kind of contest for a great label.”

It sounds like the system worked pretty well, without a lot of extra governmental intervention. The label got approved way back in 2008 and there was little fanfare. Eventually, a bunch of people got offended, spoke up, and Port quickly decided to change the label. Beernews has a lot more good information about this controversy. For those who did not get enough witch-action on Halloween, here is a squished witch and here is a burning one.

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Get your mind out of the gutter. It’s not about sex. It’s about good beer from eastern Pennsylvania.

Intercourse Blue Ball Porter is Ale with Natural Flavor. Intercourse Brewing Company is located in Lancaster County, Pennsylvania, the heart of Pennsylvania Dutch Country.  Blue Ball is a small community also located in Lancaster County, Pennsylvania.

It’s not about this. It’s not about this. The funny looking silo above is just a silo. Intercourse is quite popular and as of today, this Facebook page confirms that 415 people “like it.”

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Until about 10 years ago, there were quite a few beers made with hemp available in the US. Then TTB/ATF put out a policy and also said:

On April 6, 2000, ATF issued a policy on the use of hemp or hemp components in alcohol beverages and on the use of the term “hemp” or depictions of the hemp plant on labels for alcohol beverages. The policy does not ban the use of hemp in alcohol beverages, but was created to assure that beverage alcohol products do not contain a controlled substance (tetrahydrocannabinol (THC)). ATF also determined that the appearance of the word “hemp” or depictions of hemp plants on labels was likely to create a misleading impression as to the true identity or quality of the product. As of this writing, there are no approved certificates of label approval for products containing hemp.

Slowly but surely, however, in recent months various beers with hemp are starting to re-emerge and three of them are highlighted in this post. For the uninitiated, hemp happens to be a member of the cannabaceae family, a cousin of hops and close kin of marijuana (or cannabis). Above is O’Fallon’s Hemp Hop Rye, an amber ale brewed with hemp seeds and approved earlier this year. The label mentions the hemp, and has a little picture of the hops and rye — but the hemp or hemp seed imagery seemed to be missing (until we added it to the image above). According to a St. Louis Riverfront Times review the product “contains three kinds of malted barley, two types of rye, three varieties of hops and toasted hemp seed.”

TTB applied several hemp-specific qualifications to this and the other hemp approvals. TTB said:

1. This label may not be used on a product that contains a controlled substance.
2. Hemp component(s) must be tested in the U.S. for the presence of controlled substance(s) each time component is imported and results must be maintained on your premises for inspection.
3. A detailed description of the method of analysis used by the U.S. lab to test for controlled substance must be maintained on your premise for inspection.

A second example is Humboldt Brown Ale Brewed with Hemp. It is brewed by Firestone Walker of Paso Robles, California. This approval also happens to add “This malt beverage may not have been produced with adjuncts (additives) except those that do not remain in the finished product.”

Our third example is Rogue Epoch Days Ale Brewed with Hemp Seeds. It is brewed in Newport, Oregon and happens to include a highly detailed ingredient list of a sort that is fairly rare on alcohol beverage labels.

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Mention the words “kombucha” and “buzz” in 2006 and you’d likely be referring to the drink’s growing popularity. But mention those same words today and you’d likely be talking about allegations the fermented tea drink contains a small but legally significant amount of alcohol.

As a recent TTB statement illustrates, the Bureau is working with FDA to ensure that kombucha sold as a non-alcoholic beverage—currently all kombucha—contains less than 0.5% alcohol. Some reports claim kombucha contains up to 3% alcohol. From the TTB release:

Kombucha is a fermented tea that is typically marketed as a non-alcoholic beverage, which means that it may contain a trace amount of alcohol, as long as the overall alcohol content is less than 0.5 percent alcohol by volume. In some cases these products have alcohol contents that significantly exceed 0.5 percent. At this point, TTB does not know how many brands might be affected by this issue.

[...]

TTB plans to take samples of kombucha products from the marketplace and test their alcohol content in order to determine if the products are labeled in compliance with Federal law. If TTB finds alcohol beverages that are not labeled in accordance with Federal law, we will take appropriate steps to bring them into compliance.

TTB’s kombucha inquiry received some added exposure after Whole Foods pulled the drink from its shelves at the suggestion of TTB and amid news reports suggesting troubled actress Lindsay Lohan’s consumption of the drink may have been responsible for setting off her court-ordered alcohol-monitoring ankle bracelet. Lohan, for her part, recently began serving a 90-day jail sentence a judge imposed on the actress earlier this summer as punishment for skipping mandatory alcohol-education courses.

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Now we learn that it’s not a good idea to name your beer after a disease, if you want to avoid controversy. Above is Tyranena Brewing Company’s Scurvy Ale Brewed with Orange Peel. TTB approved the label in 2008 and again in March of 2010.

Beernews.org reports that it has not been easy:

Tyranena Brewing finally got label approval late this past week but not without some headaches from the TTB first. Here is the lowdown on what went wrong.

The following is based on one or more Tyranena newsletters.

The Government Is Back On My Nerves And Throwing Off Our Whole Schedule. … Yesterday, we were informed that the TTB rejected our new label… apparently they thought the name “Scurvy” together with the government-mandated Statement of Composition “Ale Brewed With Orange Peel” implies a health benefit from the consumption of the product.

Our new six packs were one the verge of being printed and fortunately we were able to stop them. We will be submitting a variation of the label hoping to get it through… but it is unknown whether it will meet their criteria… or how long it will take them to approve it. … Now our whole schedule is in disarray.

Stacey has been communicating with our national trade group, the Brewers Association, who said the TTB guy (and apparently there is just one guy that approves all the labels!) is reasonable and suggested that we talk with him to see how things can go from here… which may just include having approval for our former Scurvy label (the Brewers Gone Wild! version) rescinded!

Sometimes, it can be difficult to navigate the shoals between implying that a beer is good for you, and bad for you.

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We can learn a lot from this Jakk’d label:

1. It is one of very few that mentions the amount of caffeine on the label. This is probably a good thing. It is hard to imagine a good argument for disallowing a short, plain statement as to how much of a powerful psychoactive substance is in the beverage you are about to consume. This product has 75 mg. of caffeine per bottle, according to the label. It might be even better if the label used an icon or other simple statement to show that this is roughly equivalent to a cup of coffee.
2. According to box 19, the brand name does not refer to anything nefarious, and instead refers to the name of the company’s founder, and other good things like “cool,” “thorough enjoyment,” and “being pumped about the greatness of this drink.” TTB is not so sure, and noted that “The brand name remains under review.”
3. This is a rare spirits label with an FDA-style ingredient list.

Jakk’d is made in Temperance, Michigan.

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