First Amendment Lite

How the feds police liquor-related thought crime

If you’re a perfume manufacturer and you’d like to name your latest fragrance Opium, no government agent will stop you. The world’s flagship soda is called Coke. A company called Chronic Candy has been selling lollipops flavored with cannabis flower essential oil for eight years. Energy drink connoisseurs routinely enjoy products with names like Fixx, Bong Water, Buzzed, and Speed Freak. Even the controversial energy drink Cocaine is for sale again, after revising its label to comply with Food and Drug Administration guidelines.

If you produce alcoholic beverages, however, puns, drug slang, and ghoulishly percussive monkeys may land you in trouble. Take, for example, the case of the Mt. Shasta Brewing Company. Located in tiny Weed, California, the microbrewery sells bottled versions of its five ales and lagers in retail stores in California, Oregon, and Washington. Since 2004 the bottle caps on all five Mt. Shasta beers have been emblazoned with a slogan that plays on the town’s name: “Try legal Weed.”

Anytime a producer or importer of alcoholic beverages wants to market a new product, it must submit a proposed label to the federal Alcohol and Tobacco Tax and Trade Bureau (TTB) for approval. Earlier this year, when Mt. Shasta proprietor Vaune Dillman turned in his application for a new beer he planned to start bottling, he included the design of the bottle caps. Shortly thereafter, the TTB advised him by fax that the slogan “Try legal Weed” was an impermissible “drug reference,” adding, “We do not believe that responsible industry members should want or would want to portray their products in any socially unacceptable manner.”

To put it another way, the TTB believed the 61-year-old businessman and civic booster was guilty of a thought crime. Although no law on the books explicitly prohibits “drug references” on alcoholic beverage product labels, the bureau told him he had to stop using his socially unacceptable bottle caps.

Every year, the TTB reviews more than 100,000 proposed labels, and because the statutes and regulations it has at its disposal are both extremely specific and extremely vague, its agents often end up behaving more like cultural critics than government bureaucrats—parsing puns, interpreting illustrations, determining the artistic value of the occasional female breast. In theory, the agency is supposed to protect consumers by ensuring that product labels accurately convey a product’s identity and quality. In practice, it often disallows labels (and thus, at least temporarily, products) that it deems bad for the image of the alcoholic beverage industry, short-pouring the First Amendment in the process.

“What would you do if somebody handed you, I don’t know, Hannah Montana beer, and said, ‘Please approve this’?” asks Robert Lehrman, an attorney who specializes in beverage law and has been dealing with the TTB and its predecessor, the Bureau of Alcohol, Tobacco, and Firearms, for more than 20 years. “I don’t think they like making all these immensely subjective decisions on every cotton-picking label that comes down the pike. But that’s how the legislature set it up. The government decided that liquor’s taboo and therefore needs restrictions beyond those for food generally. ”

Thus, if Disney decided to market a Hannah Montana energy drink laced with enough caffeine to power the entire touring cast of High School Musical for a week’s worth of shows, it would not have to submit a proposed label to the FDA—and consequently, the FDA would not be faced with the embarrassing prospect of having to officially “approve” a product that might be considered objectionable.

If Disney decided to create a Hannah Montana pale ale, however, the TTB would either have to give an explicit endorsement or figure out some grounds on which to reject it. In such situations, the TTB resorts to nitpicking. Take the prohibition against “drug references.” While Congress grants agencies like the TTB the authority to create rules and regulations that more thoroughly interpret general statutes, the TTB’s “no drug references” edict isn’t even that official. It’s just a policy that someone decided the bureau should implement for some reason or other. In 1994 the agency published a brief notice in a newsletter outlining the new guidelines for socially acceptable labeling. “I don’t know the particular incident that brought that about,” says Art Resnick, the TTB’s director of public and media affairs, when asked about the origins of the policy. “I could look and see if anybody remembers.”

Being fuzzy on the rule’s history doesn’t prevent the TTB from enforcing it with gusto. In 2003 a Texas liquor importer named Dan Dotson began efforts to import absinthe from Kubler, a Swiss distillery that had been producing the fabled spirit since 1863. Because Kubler’s version contained less than 10 parts per million of thujone, the chemical in wormwood that had kept absinthe off the market in the U.S. since 1912, Dotson believed it was legal to sell here. After several years of discussion, the TTB agreed. But in a 2006 letter to Lehrman, whom Dotson had retained to facilitate the TTB label approval process, the agency insisted that while the beverage Kubler had produced was legal, the word absinthe (along with the variations absynthe, absente, and absinth) was an “illicit drug term” that could not be used on the labels.

Eventually, the TTB softened its stance. Now absinthe can appear on the packaging, but only as a “fanciful term” modifying some other word. One can sell “absinthe verte” or “absinthe superieure”—but not plain old “absinthe.” And probably not “absinthe weed” either. Because of absinthe’s reputation as an illegal, mind-altering substance, the TTB continues to make marketing difficult for anyone interested in selling it.

When Lance Winters, master distiller for St. George Spirits, submitted a label for his version of the spirit in 2007, it took him seven tries before he gained TTB approval. First, he says, the TTB told him the word absinthe appeared in too large a font. Then it told him his label looked too much like a British pound note. Then it said the label’s depiction of a monkey beating a human skull with a pair of femurs implied that the product had hallucinogenic properties—impermissible, since the Code of Federal Regulations does not allow labels that “create a misleading impression.”

This, alas, is government by Rorschach test. Who’s to say exactly what a cartoon monkey indicates about the properties of absinthe? Winters says he simply wanted to create a fun, light-hearted package. “Our distillery has been trying to steer people away from the idea that absinthe has hallucinogenic properties,” he explains. “I don’t want to sell a product based on promises that I can’t deliver. I want to sell this product based on the fact that it’s complex, it’s delicious, it’s something that poets and artists loved to drink because it was inspirational.”

According to Resnick, a basic tenet of the TTB’s approach is voluntary compliance. “We don’t want to take somebody’s permit,” he says. “We don’t want to put anybody out of business. So we work very hard with the businesses that we regulate to achieve voluntary compliance on their part.”

Unfortunately, the voluntary compliance the agency achieves doesn’t always feel so voluntary to those doing the complying. While Winters is happy with how his label turned out—the monkey now bangs, in unambiguously nonhallucinogenic fashion, on a cymbal, not a human skull—all that wrangling left him frustrated. “The product in the bottle had been approved,” he says. “They weren’t protecting anyone from absinthe. They were protecting people from how the absinthe had been presented. It’s wonderful that they offered solutions to help me get the label approved, but what their solutions amounted to was a dumbing down of the labels and a loss of a certain amount of freedom.”

By censoring small businessmen like Winters and Vaune Dillman over purported “drug references,” the government is enforcing the idea that it’s not just illegal to manufacture, sell, or possess certain drugs in America. It’s illegal even to possibly allude to them. Even when confined to the limited scope of alcoholic beverage labels, that’s enough to drive a man to drink.

Contributing Editor Greg Beato is a writer in San Francisco.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Elemenope||

    Hmm. And this sort of pushing around would only work against small brewers. A significant brewer who thought they had a winner on their hands would probably say "fuck off, and we'll see you in court". And they never would, because the government one hopes wouldn't be so stupid as to push such a 1st Amendment loser into an area where they could lose it all.

    Of course, it would be nice if they did, so regulatory agencies would have their 1st amendment sliming toungues clipped permanently.

  • Anonymo the Anonymous||

    Because no one who has ever come into contact with it would possibly be enticed by the name "Bong Water"?

  • ||

    Eventually, the TTB softened its stance. Now absinthe can appear on the packaging, but only as a "fanciful term" modifying some other word. One can sell "absinthe verte" or "absinthe superieure"-but not plain old "absinthe."

    I don't think "absinthe" is the modifier in either of those phrases.

  • Elemenope||

    I don't think "absinthe" is the modifier in either of those phrases.

    You'd be right, but how many regulators do you know that have a grasp on *our* language, much less French?

  • ||

    Coolness! Thought crimes are cool arent they?

    JT
    www.Ultimate-Anonymity.com

  • ||

    Go away spammer Jimmy.

  • ||

    I don't think "absinthe" is the modifier in either of those phrases.

    sure it is!
    Just take a phrase in any foreign language you want and assign American grammar rules to it and it will still make sense.

    no?

  • Episiarch||

    Hmm. Good thing to know that drug references are socially unacceptable. I didn't realize that the government defined society.

    So how is Pineapple Express even made, TTB?

  • ||

    The sad thing is that the taxpayers foot the bill for these less than useless parasites called regulators. If you can't make it in business, academia or picking fruit, become a regulator. Productivity and acumen are traits neither requirted nor encouraged in the profession.

  • ||

    I don't think they like making all these immensely subjective decisions on every cotton-picking label that comes down the pike.

    Horseshit! That's the way power is exercised. And bureaucrats lust for power with an unslakeable hunger.

  • ||

    I don't think they like making all these immensely subjective decisions on every cotton-picking label that comes down the pike.

    Oh great
    Now we have labels for cotton-pickers too?

  • ||

    What part of the constitution allows regulatory agencies to, well, regulate? I could have sworn it reserved those powers to congress...

  • First Little Pig||

    This is the kind of nonsense that has pushed me from libertarian to anarchist. The kudzu that is the endless reach of government must be pulled out by the root lest it overwhelm us all.

    But even if Libertopia will always elude us, can anyone explain why the market can't resolve whether or not something is patently objectionable? If the "objectionable" labeling leads to greater sales, then is it really so objectionable? Oh, I suppose it might offend some people..... Well, they can not buy it, complain to the retailer, write to the company, whatever...

    And community standards change. Hell, they tried to sue Penthouse (back in the 90's) over "indecency" in what they thought would be a slam-dunk, conservative, community and lost.

  • Elemenope||

    But even if Libertopia will always elude us, can anyone explain why the market can't resolve whether or not something is patently objectionable? If the "objectionable" labeling leads to greater sales, then is it really so objectionable? Oh, I suppose it might offend some people..... Well, they can not buy it, complain to the retailer, write to the company, whatever...

    Not to go all Burke on your ass, but the functioning of society requires at some level some stability for unwritten norms and rules; those which are viewed as most important or critical (whether or not they in fact are) are enshrined into law.

    I don't see that as an *entirely* bad thing. It retards the celerity of changes from being faster than can be coped with by the people who have to live in those societies. Society generally has to *come around* to the notion that a certain principle needs tweaking, changing, or abandoning, before it actually can be, whatever the laws or judges may otherwise say.

  • Nelson||

    The TTB are only enforcing the FDA rules. According to the FDA, alcoholic beverages must be thujone-free pursuant to 21 CFR 172.510. Therefore, according to some, the US versions are not absinthe anyway.

    There are plenty of people - the people selling it - who are producing reports / websites saying that thujone doesn't matter. How convenient! Drink up, America!

  • Elemenope||

    What part of the constitution allows regulatory agencies to, well, regulate? I could have sworn it reserved those powers to congress...

    Article One of the United States Constitution, section 8, clause 18: "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

    If Congress, in its infinite lack of wisdom, decides that the most expedient way to execute a law it has written is to establish a regulatory agency, voila.

  • Highway||

    Why is the government allowed to use the word 'voluntary' in anything? Every time, it's the old sergeant definition of 'voluntary', which amounts to something a friend of mine calls 'Voluntold'.

    "We like to get voluntary compliance from our partners"... cause it sure would be a pain to go through all the paperwork to force them to do it, or put them out of business. But we'll keep that threat hanging around.

  • ||

    Just yet another in a million petty tyrannies.

  • First Little Pig||

    Elemenope,

    Even if I were to agree with you (which I do not) is it even possible to argue that denying a beer having a label "Bong Water" represents something "most important or critical" for the functioning of society.

    Outlawing violent acts I get. Suppressing speech I do not. Regardless of the content.

  • ||

    Dave Barry did a very good, very funny and very libertarian piece about the regulatory travails of a fruit merchandiser who wanted to label his prunes dried plums, thinking that it would increase sales. I couldn't find it online, but it is in this highly recommended* book.

    *By me.

  • Elemenope||

    Is it even possible to argue that denying a beer having a label "Bong Water" represents something "most important or critical" for the functioning of society.

    Sure, it's possible to argue. But I don't think, today, that argument is a winner in the wider society. "But if they label it bong water, kids will toke!!!i1!!i11!" is the sort of argument that gets you laughed out of rooms these days.

    So much the better.

    On the more general matter, I'm curious how you envision a society functioning with rapidly changing social rules. Please elaborate, if you'd be so kind.

  • Elemenope||

    p.s. I agree with you completely on the narrow issue of speech. If it ain't outright fraud during a contract or purchase negotiation, it's allowed, no matter what.

  • ||

    this sort of pushing around would only work against small brewers.

    Agreed. How does Miller get away calling its beer, the high life, Coors used Rocky Mountain High in an ad and Budweiser brands itself as Bud.

    "Bud Light?" "Yeah, man. Light up that bud."

  • Bingo||

    It's bad because its illegal.

  • duster||

    No, it's illegal because it's bad.

  • Dave B.||

    On the more general matter, I'm curious how you envision a society functioning with rapidly changing social rules. Please elaborate, if you'd be so kind.

    I'm pretty that many social rules in America have been rapidly changing for some time now.

  • First Little Pig||

    Elemenope,

    We live in a society with rapidly changing social rules -- we should probably call them "norms" -- but have a system of laws that cannot possibly keep up. I think that, in general, there should be as few laws as possible and they should tend not to target non-violent, consensual behavior among adults. Here's an idea:

    1) Allow people to do as they wish and let society either accept or shun them. As long as they hurt no one, then they should be left to do as they please. Jeans below the crack? Public ridicule is better than new laws

    2) Assuming that you really need laws to regulate behavior, then rather than allow regulatory agencies to impose diktats on everything from how much skin can be in a magazine or whether you are better off taking the risk of phen-phen or fat we have any proscriptive law be voted by whatever legislature has authority. If the Fed really does have the right to say "no marijuana references on booze labels" then let the FDA or whatever agency make the suggestion and make congress vote... Of course if it does not fall under Federal scope then let state or local legislatures vote.

    3) All laws (or regulation) of this sort (all laws really) should sunset every 5 years or so and have to be re-authorized by legislative vote. This would allow lots of really dumb laws (e.g. no dildos) to die a peaceful death since at some point no one will bring them up.

    This would force legislatures to either allow change or risk taking a stand on issues that the people at large have gotten over. Then they can face demise at the ballot box.

    There's more, but I have an appointment. TTFN!

  • LarryA||

    On the more general matter, I'm curious how you envision a society functioning with rapidly changing social rules.

    Compare the U.S. and the U.S.S.R. between 1946 (the end of WWII) and 1989 (the fall of the Iron Curtain.) The U.S. reinvented itself several times on a revolutionary level, and made immense economic and social progress. The U.S.S.R. Communist Party ruthlessly enforced its ideological "People's Revolution" social rules, and ended up with an economic and ethnic basket case.

    The same comparison can be made between West and East Germany and West and East Berlin.

    On the other side of the world, contrast China with Japan or Taiwan, or North with South Korea.

    Mankind's greatest thinkers have for millenia attempted to design socially, politically, and economically optimized utopias. So far every one of them has sucked.

  • ||

    On the more general matter, I'm curious how you envision a society functioning with rapidly changing social rules. Please elaborate, if you'd be so kind.

    I'm pretty that many social rules in America have been rapidly changing for some time now.



    Only 232 years.

  • Kant feel Pietzsche||

    Ah, yes; the notorius POLICY:

    In 1994 the agency published a brief notice in a newsletter outlining the new guidelines for socially acceptable labeling. "I don't know the particular incident that brought that about," says Art Resnick, the TTB's director of public and media affairs, when asked about the origins of the policy. "I could look and see if anybody remembers."

    How policies come about:

    1. Place six monkeys in a cage, with a cluster of bananas on a pole

    2. Every time a monkey attempts to climb the pole in pursuit of said bananas, beat not only the offender but all the other monkeys as well

    3. Replace one of the original six monkeys with a rookie. He will eventually try to climb the pole, whereupon he will be attacked by the other five. He will not understand why, though the original five will; but after several attacks he will never try to climb the pole again.

    4. Repeat step three until all the original monkeys are gone.

    5. At this point, any new monkey who attempts to climb the pole will be beaten by the other five. Neither the victim or the attackers will know why climbing the pole is forbidden, but the cycle will repeat endlessly.

    6. A POLICY IS BORN!!

  • nfl jerseys||

    jkrhy

  • دردشه عراقية||

    Thanks

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