The International Herald Tribune reports:
SACRAMENTO, Calif.: Vaune Dillmann thought the wording on his bottle caps was just a clever play on the name of the Northern California town where he brews his beer — Weed.
Federal alcohol regulators thought differently. They have ordered Dillmann to stop selling beer bottles with caps that say “Try Legal Weed.”
While reviewing the proposed label for Dillmann’s latest beer, Lemurian Lager, the Alcohol and Tobacco Tax and Trade Bureau said the message on the caps he has been using for his five current beers amounts to a drug reference.
In a letter explaining its decision, the agency, which regulates the brewing industry, said the wording could “mislead consumers about the characteristics of the alcoholic beverage.”
Mislead them? About what?
Would it surprise you to learn that this is all part of the ill-fated war on drugs? Any “drug references” on alcoholic beverages were banned in 1994 according to a spokesman for the Alcohol and Tobacco Tax and Trade Bureau.
“We protect consumers of alcohol beverages against misleading advertising and labeling,” he said.
The 2d Circuit ruled in favor of a brewer in Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998). In that case, the appellant sought to use a trademark of a frog “giving the finger” to any and all passerby on bottles of liquor. New York state held that the brewery couldn’t do that since the mark was offensive in nature. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose.
This isn’t the same thing, naturally. A reviewing court should (at the least) place this application of the regulation up to rational basis scrutiny. Anyone who thinks that “Try Legal Weed” on a bottle cap is misleading is already high. But, since when does anything done in the name of the war on drugs need to be rational?
HT to Above the Law