Atlas Brew Works, based in Washington, D.C., wants to sell 40 kegs of its "The Precious One" craft beer while it is still fresh, some of them across state lines. The federal government, in a policy that should always have been constitutionally questionable, insists it must pre-approve any beer label that enters interstate commerce under the certificate of label approval (COLA) rule contained in the Federal Alcohol Administration Act.
Thanks to the ongoing federal government shutdown, the Treasury Department's Alcohol and Tobacco Tax and Trade Bureau (TTB) is not processing or issuing such approvals. Atlas applied for approval for the keg labels for its apricot-infused seasonal IPA on December 20, but two days later, before the TTB took action, its funding ran out and it ceased issuing approvals, or COLAs.
Atlas sells its beers in both cans and kegs, and the TTB had already approved the label for the cans, but not yet for the kegs. Not being able to sell those kegs will cost the brewery at least $5,000, it claims, as the beer is perishable, with the costs increasing the longer the COLA threat hangs over its head with no legal means of getting label approvals for that beer and other beers it wants to sell. It can sell the beer in D.C. itself, but claims that there is no reasonable chance it can sell all of it there before some of it goes bad.
The Atlas Brew Works company is suing in U.S. District Court in the District of Columbia, seeking a temporary restraining order against the government enforcing the COLA rule against it.
As the motion for the restraining order argues, "Americans' fundamental right to free speech requires no Congressional authorization. The government can shut down free speech regulators. It cannot shut down the First Amendment."
Its beer labels are "a form of expression protected by the First Amendment" it insists, and cites previous cases in a separate complaint document in the case of Atlas Brew Works v. Whitaker that support this contention.
The filings, from civil rights lawyer Alan Gura who has succeeded in winning various prominent First and Second Amendment cases, say it should be obvious that "the government cannot simply prohibit beer labels as a category of speech…. Atlas and its customers are suffering irreparable harm in that the government violates their First Amendment rights every moment that Atlas is not free to label its products…. The government cannot require Atlas to obtain a license in order to speak—a license aggressively reviewed for content under rules mandating some statements and forbidding others…and then shutter the licensing office indefinitely."
Atlas should thus be able to sell its labeled beer without running the risk of misdemeanor prosecution, the suit argues.
Elsewhere in Reason: Eric Boehm wrote earlier this month on how the vital process of getting fine beers to a thirsty public during the shutdown was being unnecessarily halted by this ultimately unnecessary policy.