With a huge variety of beers and wines to choose from, many shoppers ultimately let the label decide their purchase choice. Wineries and breweries noticed this long ago and started creating whimsical or humorous labels to attract purchases. There are reasonable restrictions to what can go on a label, but in many cases the restrictions are overreaching.
Legal Weed Beer
If you haven’t heard, Vaune Dillmann, owner of Mt. Shasta Brewing Co. in Weed, California ran into an issue with his bottlecaps. The bottlecaps are offending the U.S. Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB) with the statement “Try Legal Weed”. Most everyone else thinks the bottlecaps are funny. Dillmann says it’s a joke based on the name of his home town. The TTB states Dillmann crossed the line. The government contends the bottlecaps are a drug reference. Well duh! So what? It’s funny.
The government claims the bottlecap’s drug reference is misleading to the consumer as to what is contained within the bottle. Apparently there are tons of people out there who will think the beer might contain pot and make them high. Sounds silly, but I’ve had people tell me that Coca Cola contains trace amounts of cocaine (it hasn’t contained cocaine since 1929). So why doesn’t Coca Cola need to change their name? Lucky for Coca Cola, the TTB and state alcohol agencies do not regulate soda.
The real question is why does the government care about this?
Thou Shalt Not
The TTB regulates what you can put on a label. Some of the regulations make sense. You can’t say your beer or wine cures cancer unless you can back it. These aren’t vitamins or health supplements after all.
Here is the list of restrictions for a beer or wine label.
1) Any false, ambiguous, or missing statements which can mislead the consumer.
2) Any statements disparaging a competitor’s product.
3) Any statement, design, device, or representation which is obscene or indecent.
4) Any statement, design, device, or representation of or relating to analyses, standards, or tests, irrespective of falsity, which the appropriate TTB officer finds to be likely to mislead the consumer.
5) Any statement, design, device or representation of or relating to any guarantee, irrespective of falsity, which the appropriate TTB officer finds to be likely to mislead the consumer.
6) Any pictures or statements that led the consumer to believe the person (in the picture or endorsement) endorses or produces the product.
7) Any statement (other than a statement of alcohol content) that leads you to believe the beverage is intoxicating.
Number seven is my personal favorite. You can put on the side of the bottle, “don’t drink this and operate machinery while intoxicated”, but you can’t say “this will get you drunk”. Seriously.
The real heart of the issue is number three. 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.
Bad Frog beer was banned in several states because the frog on the label was holding up its middle finger. This means in some states the middle finger is considered offensive. Ironically the issue went to the courts in New York, a state where the middle finger salute is almost a salutation. The courts ultimately decided in favor of the frog and it’s middle digit “free speech”.
Free Speech for beer
If you are for free speech, then anything should be allowed. Free speech not only protects what you want to say, it also protects the speech you don’t like. You can’t state some speech is acceptable, while other expressions are not.
Of course not all speech is protected. As we stated earlier, you cannot make ridiculous claims on the bottle. You cannot mislead the consumer. This is the purpose of the regulations. The claim “Legal Weed” might mislead a consumer into believing marijuana is contained in the beer is a stretch. There is a fine line between what should be regulated and what should not be regulated. Where do you draw the line?
Some labels are rejected because they contain nudity. These rejected labels were not Penthouse pictures of some hippie chick showing off her muffin. They were tasteful nude pictures, something you might see in an art gallery. Should the government prevent nudity on beer and wine labels, a beverage which is inherently “adult”?
Won’t someone please think of the children?!
The most common and valid question is, would you want your child to see the label? Sure a child should not be inside a liquor store, but how about a grocery store? If you are lucky enough to live in a state where they sell alcohol in grocery stores, selling labels with nudity could be offensive. We can’t expect grocery stores to place roped off areas like the porn section of a video rental establishment.
Santa’s Butt Porter
The question of children has come up before. Maine's Bureau of Liquor Enforcement denied a label application from Shelton Brothers of Belchertown because the image contained an "undignified or improper" illustration. The "undignified or improper" illustration is Santa’s butt. The butt is fully clothed and there is no butt crack showing. It is just a drawing of Santa from behind.
The drawing wasn’t really offensive. The concern was children would see their beloved Santa on a beer and think the beverage was for them. It’s a cartoon character selling alcohol. Is that ok?
The Maine Civil Liberties Union filed a lawsuit on behalf of the Belchertown, Massachusetts company in U.S. District Court in Portland accusing the Maine Bureau of Liquor Enforcement of censorship. Maine reversed the decision on the Santa’s Butt label and two other labels (which displayed women’s breasts), but they did not change their regulations. The lawsuit will need to continue to decide if the labels are protected under the First Amendment.
Solutions
In most cases, after long lawsuits the breweries and wineries are ultimately winning. It is difficult to support censorship in the United States. You can only censor until the issue eventually goes to the courts. Is this something we really want our government to spend our tax money on? These issues in the court are rather expensive. Doesn’t the government have more pressing issues like education or health care?
The government should not concern itself with the picture on the label or any statements, unless the contents of the label truly are misleading. We don’t want alcohol to become the next homeopathy. False advertising needs to be illegal.
Personally I think the free market should decide. If you decide to put the latest Hustler Honey on your label, most supermarkets will not carry it. You’ll have troubles marketing your beer or wine. Eventually you will need to change your label. The problem solves itself, and the government does not need to be involved. The best part about letting the market decide, sales will determine if the label is offensive.
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