Joe Sixpack: Name games

Posted: July 28, 2011

JIM CARUSO, the CEO of Maryland's Flying Dog Brewery, must've felt like he was trapped in a rerun of "Leave It to Beaver."

In 2009, he flew out to Lansing, Mich., to appeal the rejection of the label for his brewery's Raging Bitch Belgian-Style IPA. As with all of his company's products, the label featured a gonzo, ink-splattered cartoon by British artist Ralph Steadman, the guy who illustrated the works of Hunter S. Thompson. The beer had hit the shelves in a frenzy and would quickly become the brewery's top-selling brand nationwide.

But not in Michigan.

There, the state's five-member Liquor Control Commission - apparently stuck in the 1950s - ruled the language on the label was "detrimental to the health, safety, or welfare of the general public."

"They told me, 'We don't use that five-letter word here,' " Caruso said. "I'm like, 'Seriously?' "

(The state liquor agency also turned down Dogfish Head Bitches Brew, named after the landmark Miles Davis jazz album.)

Caruso lost his appeal and joined a short but notable list of brands whose labels have been rejected by various state authorities for breaching their rules of decorum. Over the years, states have turned thumbs down to the likes of Bad Frog (shown flipping a one-digit finger), Santa's Butt (illustrated with his squatting, red-suited tuchus) and Manneken Pis (picturing the iconic tinkling Brussels sculpture), among others.

In each case, the decision to ban the labels was made by a small group of appointed state bureaucrats whose decisions seemed either arbitrary or inscrutable. How, for example, can "bitch" be OK in 49 states but not Michigan? And why is that "B" word so vile when another, "bastard" (as in Stone Arrogant Bastard), is just fine?

Significantly, in each case, the states eventually either backed down under threat of a lawsuit or were forced by the courts to OK the labels.

Last month, Michigan backed down, too, citing a recent U.S. Supreme Court decision in an unrelated case that established that freedom of speech extends to commercial goods.

That's not good enough for Caruso. Backed by the Bellevue, Wash.-based Center for the Defense of Free Enterprise, he's suing the liquor commissioners for loss of sales.

"They committed a crime," Caruso said, claiming the commission had violated his company's First Amendment rights. "This is about the laws of the Constitution. If we don't push back, we will lose our rights."

Under federal law, all beer labels must be approved by the U.S. Treasury Department's Alcohol and Tobacco Trade and Tax Bureau. Label reviews can take months. They typically focus on basic information, including net contents, beer type and the mandatory government health warning. Additionally, beer labels can be rejected for other, more subjective reasons, including obscenity.

While some brewers gripe about the TTB review, they mostly accept it as part of business. It's the additional state review that gives them headaches.

After the 1933 adoption of the 21st Amendment, states were given strong regulatory oversight of alcohol. That's why rules over alcohol types, hours of operation and sales restrictions vary so much from one part of the country to the next.

While some states simply OK any beer that receives federal label approval, a few, including Pennsylvania, still give each the once-over.

Now, if Michigan ends up paying for its prudishness, it could go a long way toward ending what some businesses see as unnecessary interference.

Some, like beer importer Daniel Shelton, who had several notorious run-ins over his company's Bad Elf series of British Christmas beers, sees "no public purpose" to state review.

"And if there's no purpose," he added, "they have no right to burden interstate commerce."

Join Joe Sixpack from 7-10 p.m. Saturday for a special beer fest to benefit the Indian Valley Public Library in Telford, Montgomery County. $40 (includes beer and food); info, 215-723-9109.


"Joe Sixpack" is by Don Russell, director of Philly Beer Week. For more on the beer scene, sign up for his weekly email update at www.joesixpack.net. E-mail: joesixpack@phillynews.com.

 

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