Posts Tagged ‘state’
Our law firm has been in the heart of Fairfax County, Virginia, since 2001. Before that, I worked a couple blocks from the White House. For the most part, we’ve handled federal beverage law during that time. But increasingly, we are handling local law matters, and this story made the shift seem more real.
Jim Vance says the zoning laws got loosened, to make it easier for breweries, wineries and distilleries to open in our county. Even before this change, we were noticing Caboose Brewing down the street, Fair Winds Brewing in Lorton, and The Winery at Bull Run across town in Centreville. There is also the Paradise Springs Winery in Clifton. This Bowman plant closed down in 1988, after beginning distilling operations in Fairfax in 1934. Less than 1.5 miles from the office, there was a winery for a while after Prohibition, producing “Virginia Maid” wine at what is now Nottoway Park. Come to think of it, that’s startlingly little activity for a big, upscale, increasingly urban county with over 1.1 million residents and covering over 400 square miles.
As locals and as lawyers, we look forward to many more fine beverage producers setting up in our county.
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.
Tough video taking aim at the Virginia ABC. It is credited to Caleb Brown and Austin Bragg, but it would be nice to know more about the people and groups and motivations behind this hard-hitting video. It won the 2009 award for video of the year, from the Sam Adams Alliance.
Dear Flying Dog,
Please tell me about your battle. It sounds interesting.
The Road Dog Porter label mentions shit not less than five times. Who would have expected the Founders were fighting for a beer company’s right to say this, and who ever thought a beer company would go so far to claim it. The label says:
We spent four long years in court fighting for our first amendment right to display the phrase “Good Beer, No Shit” on every bottle of Road Dog. In honor of sticking it to the man…
Fermentarium has part of the story:
The real heart of the issue is … You can’t put something indecent on the label. Unfortunately it is some guy in the government who gets to decide what’s considered obscene. He might be cool or he might be the most uptight person in the world. There is no way for the brewer to know. You might consider something obscene, but others may find the label acceptable. For example, is profanity considered obscene?
In 2001, the State of Colorado said yes it is. Flying Dog Brewery’s Road Dog Ale label was rejected because the label said “good beer… no shit”. The ACLU and Flying Dog Brewery sued stating the State of Colorado violated their First Amendment rights. Colorado agreed to discontinue the label restrictions, however it is ultimately a state right. Kansas can have completely different rules and restrictions.
It is likely that all beer, wine and spirits labels will change dramatically in the near future. TTB has been working on new rules since CSPI and other groups submitted a petition in 2003. The new rules would require a “Serving Facts” panel on every container. This panel would include a lot more information, such as the typical serving size, number of servings per container, calories, carbohydrates, protein and fat. Because this is a big, controversial change, TTB has received more than 18,000 public comments during the past few years. There are far too many comments for most people to review, and so we will highlight and summarize the most noteworthy comments here. The most recent proposal and comments are here. This is comment 16 in a series; to see others, click on the “serving facts” tag below.
The Pennsylvania Liquor Control Board’s 2-page comment said:
- the rule should provide that a standard serving is 1.5 fluid ounces for spirits, 12 ounces for beer and 5 ounces for wine.
- the panel should explain that “a standard drink contains 0.6 fl. oz. of alcohol.”
- the Serving Facts panel should show the amount of alcohol per serving.
By contrast, St. Supery Winery’s 1-page comment said:
- the proposal is burdensome and would provide “no additional useful information to consumers.”
- Most back labels already need a UPC and a Government Warning and this additional information is likely to crowd out the product descriptions that consumers want.
- Wines fluctuate considerably from tank to bottling and this could require extra testing and expense.
- This will raise our costs; we will pass those along to wholesalers and they will get magnified along the way to consumers. Most consumers would rather have lower costs compared to extra, already-available information.
Are they right?