For decades Texas officially prohibited the sale of beer with an alcohol content higher than 5 percent by volume. In reality, you could sell stronger beer; you just couldn’t call it beer. Instead it was “malt liquor,” which is not actually liquor, or “ale,” which everyone outside the Texas Alcoholic Beverage Commission (TABC) defines as beer fermented at room temperature. In December, U.S. District Court Judge Sam Sparks did away with this confusing nomenclature, ruling that brewers have a First Amendment right to call beer by its proper name.
The TABC tried to justify the state’s inaccurate beer/ale distinction by arguing that it provided a rough guide to alcohol content. Meanwhile, however, state law restricted more precise information about alcohol content, banning such numbers from ads for all brewery products, prohibiting them on labels for “beer,” allowing them on labels for “ale,” and requiring them on labels for distilled spirits. It also banned descriptions that allude to alcoholic strength (such as “strong” or “high proof”) from ads and labels for all brewery products. Sparks, who was responding to a constitutional challenge by three Austin businesses that make or sell beer, overturned these rules as well.
Finally, Sparks rejected a regulation, ostensibly aimed at preventing vertical integration, that prohibited a brewery from telling its customers where they can buy its products. Among other things, that rule required brewers to disable the retailer location functions on their websites for customers in Texas.
As with the other regulations, Sparks concluded that the state had failed to show the ban on publicizing retailers directly advanced a substantial government interest, let alone that it did so in a way that was no more extensive than necessary—the test the U.S. Supreme Court has established for restrictions on commercial speech.
Sparks scolded the TABC and Texas Attorney General Greg Abbott for their “halfhearted” defense of the state’s longstanding speech restrictions. “When TABC responded to [the plaintiffs’] challenges at all, it responded with little in the way of argument, and even less in the way of relevant evidence,” Sparks wrote. “Whether this failure reflects a tactical error, laziness, an implicit concession that the [Texas Alcoholic Beverage Code] cannot withstand constitutional scrutiny, an erroneous assumption that TABC is entitled to special treatment, or a mere oversight, the Court cannot say.”