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.