Are Labeling Laws Going Too Far?

Beer labeling, we seldom think about it. We grab a beer, read the label for ingredients and down the hatch. Why else is there a label, but to tell consumers what your wondrous tonic is comprised of? You mean there is a marketing element?

Well of course there is a marketing element; there is a reason your beer label includes flashy vocabulary and catchy imagery. The brewer is selling beer –  a product (we know its more than that, but for the sake of argument…)

There is a whole mess of regulation that prohibits your favorite brew from donning a more sexy label. Beer labeling laws restrict brewers from utilizing images and names that might raise more interest in their grog. This has to be the reason that you do not see gory, sexual, or off the cuff labeling – someone is saying no.

There is a lot of information on the web about beer labeling regulation. A great starter article by Andy Pasquesi, illustrates the laundry list of “no-nos” in the beer labeling world. A sample of the bad and ugly:

On the container or other packaging (for example, the cardboard box surrounding a case of beer cans or the cardboard holder for a six-pack of beer bottles), you are aren’t allowed to:
• Make false statements.
• Say anything bad about a competitor’s product.
• Put obscene or tasteless writing, images or device (for example, pop-ups or microphones).
• Mislead consumers with manipulated information from tests, standards or other analytical data.
• Use a name that suggests your product is endorsed or supervised by a person or organization when it isn’t. The exception to this is if you’ve sold the product under that name for five years or more without incident.
• Make misleading guarantees. You can offer money-back guarantees.
• Use a name that suggests your product is made from distilled spirits. However, existing distilled spirits brands can co-brand themselves with beers, as long as it’s clear from the label that “Johnny Walker Summer Ale” is a malt beverage and not a distilled spirit. This goes for cocktails as well. (You can sell a mudslide-flavored beer, but it must be clear that there is no vodka in the beverage.)
• Use a design or image that simulates a government stamp, meaning no presidential seals, armed services insignias, fire or police emblems, currency graphics or state flags.
• Claim or imply the health benefits of your product.
• Direct consumers to a third-party for information about the health benefits of your product or ingredients therein.

Yuck. You mean to tell us that we need to figure what is “obscene and tasteless” before we print 1000 bottle labels? Statutory ambiguity in the regulations leads to too much discretion for Alcohol and Tobacco Tax and Trade Bureau (TTB) officials, the body entrusted with the power to shut down product packaging and labeling.

You can read more about the TTB powers, rights and regulations on their website’s “labeling” page. For all you nerds out there, the beer labeling laws are located at 27 CFR Part 7, Labeling and Advertising of Malt Beverages and 27 CFR Part 16, Alcoholic Beverage Health Warning Statement. Exhilarating reading.

So who is the rouge challenger of beer labeling? I think that no one goes above and beyond the call of duty to fight restriction better than Scotland’s BrewDog. BrewDog has again and again toyed with regulators and private organizations formed to restrict alcohol marketing devices.

The Portman Group is one such private organization. Here is their mission statement:

“Just as people should show personal responsibility when drinking alcohol, companies must demonstrate responsibility in the way that they conduct their business.

We work with drinks producers to raise standards of alcohol marketing.  We challenge companies to be socially responsible and inspire them to achieve best practice.”

Well then, what say you Portman Group about BrewDog’s recent super heavy alcohol releases? They didn’t like it. Shocker.

BrewDog’s release of the 18.2% brew Tokyo, included labeling which implies that life sometimes needs excess – this beer is for those times. Apparently that struck a cord with Portman, who released the following statement:

Portman Group Chief Executive David Poley said: “We don’t regulate the alcohol content of drinks but we do control how they are promoted. It’s obviously unwise for any company to urge consumers to drink to excess.

“We won’t allow any irresponsible marketing whether it’s for a big brand or a niche product. That’s why we’re taking action to restrict future sales of this beer.”

BrewDog’s response……target major producers who push 24 packs of Keystone Light, Natural Light and plethora of “light” products, the sole intention of which is to drink in heavy quantity in party atmospheres.

“They should perhaps concentrate their efforts on targeting the brands selling 24 cans of lager for £7 – where literal excess is contributing to Scotland’s problem with alcohol.”

So, the battle comes down to whether a restriction unfairly restricts craft brewers who brew at a high level of alcohol, but less volume, versus those massive producers who keep the ABV low, but package in massive volume. Remember 24 cans of 12 oz is 288 oz. The price of a BrewDog Tokyo’s 22 oz bottle is roughly 18.00, whereas a case of Keystone Light is roughly 16.00. Hint: there is much more alcohol in that case of Keystone.

You can take many different angles on this argument, but the result should be that beer is a changing industry that requires a new approach to regulation. No longer is the beer market wholly comprised of sub-5% malt beverages. The craft industry has made beer climb towards the ranks of spirits. Beer is no longer only consumed in heavy quantities, but can also be enjoyed one bottle at a time, over a lengthy period of time.

Luckily for you beer aficionados who do not see a problem with beer marketing, there is BrewDog. BrewDog seemingly fears no backlash, poking fun at regulators by producing, back to back, Nanny State (a 1.1% beer) and Tactical Nuclear Penguin (at the time the highest ABV on the planet at 32%). Take that regulators.

Even more recently, BrewDog spawned a battle of the heavy beer with German brewer Schorschbraeu, who did back to back releases of a 32% brew and a 40% brew named “Schorschbock.”

Not to be outdone, BrewDog immediately released “Sink the Bismarck,” a brew weighing in at 41%.

Now, we love beer, but has this battle brought out the worst in beer? Is it still about the complexity, flavor and ingredients – or merely the alcohol?

Schorschbraeu Managing Director and brew master Georg Tscheuschner told the media, after BrewDog’s recent release:

“We’ll just brew another, stronger one,” he said. “Forty-five percent shouldn’t be a problem and we have beer enthusiasts waiting for it.”

We just hope they stay on the shelf. Bad or good, the beer is these brewer’s income. Regulators who may aim to shut it down, could easily hit these brewers right in the pocket.

Is it time for a new discussion of beer labeling laws? We think so. How about you? Leave comments below.

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Washington Ad Regulations Hit the Beer Industry

How will large murals, such as this Georgetown staple, be viewed under new laws?

Hallelujah! Thank you sir. Our friends over at Washington Beer Blog spurred a mighty fine conversation about recent changes to the Washington State regulations over outdoor alcohol advertising. Just in time for Beer Law & Legis.

The Blog authors cite Washington Administrative Code 314-52-070 as being amended to restrict the number, size and location of beer signs in bars, restaurants and outdoor beer events. Here are the bolded points:

  • A bar can only have 4 visible signs listing the names of beer, manufacturers, or brand names. This restriction is to signs visible from the public right of way (anywhere on the street)
  • Size limits on signs are imposed. Signs can only be  1600 square inches in size (roughly 3.5 ft x 3.5 ft).
  • No outdoor advertising within 500 feet of places of worship, schools, public playgrounds, or athletic fields (more than a football field and a half).
  • Exception for “tourist oriented designation signs” under RCW 47.36.320. Also, local governments can provide an exception to their licensees through local ordinance.

At first glance I thought that this is a much broader statute than is being let on. This does not simply apply to bars and taverns, but to distributors, gas stations, groceries, billboards, and banners.

WAC 314-52-070 regulates “outdoor advertising.” Here is the definition for “outdoor advertising” :

(1) “Outdoor advertising” by manufacturers, importers, distributors, and retail licensees for these purposes shall include all signs visible to the general public, whether permanent or temporary, advertising the sale and service of liquor (excluding point-of-sale brand signs, which are defined and governed as otherwise provided in WAC 314-52-113) as well as trade name and room name signs.

Essentially, this is every beer sign taking up space in Washington state, which is visible to the public (thankfully my phenomenal coaster collection in the kitchen is not regulated). But, be noticed that massive Henry Weinhard signs in the Belltown area or Bud Light Cruise Signs in SODO are coming down. These are not excluded under RCW 47.36.320, which targets directional and scenic signs, such as highway road stops.

Now, the old law already regulated signage within a “proximity” to the schools, churches and play fields. But the law was extremely broad, vague and allowed too much discretion. Thus, I will agree that it needed a change.

A change should be sensical. I have never been a huge fan of the 500 foot rule. This is the distance used to regulate gun sales. 500 feet is a long way. Thats over 1.5 football fields, and you would be surprised to see how many public establishments are within the 500 foot line from bars and alcohol sellers.

Something shorter than a city block is fair – which is somewhere around 300 feet. But 500 feet just gives people the chance to throw darts at establishments around the corner and down the road from public parks (which are everywhere). If there is not a danger that is clearly related to the signage prevalence, do not over regulate it. Kids are exposed to alcohol advertising everywhere they go. It is hard for us to believe that they a clearly identified and scientifically proven problem is related.

The other issues – number and size. We actually agree with the number. There are four sides to a building in 99% of the cases (good job Triangle Pub on your originality). So, the number permits you to get a sign on each side, or hedge your bets and focus on one facade.

Either way, 4 signs gives you a change to get your big 3 up (A-B, Miller, and Coors) and one micro. In this world, you should be happy that they picked anything above three. Lets just hope that Heineken doesn’t pop up and spoil the numbers. What I would hope for is some more creative advertising from MillerCoors and A-B, where they max out the 1600 square inches and join multiple labels/brands into one sign. Certainly an option and both good and bad. On one hand, its more crappy beer in your face, but its also more chances for open spots.

In the end, your favorite bars will know what to choose. Remember, we live a place where distributors fear the bars – not the other way around. A-B and MillerCoors do not take over most bars here. Look at your local taps – PBR is your midwest water beer of choice.

The size is the least of the issues. In fact, its might be for the better. Gigantic beer murals have taken over spaces in SODO, Belltown and Downtown. It has started to become a joke, a reality show advertisement. Small brewers and their distributors cannot afford to construct massive signs, or pay for the space to fit them. This regulation benefits our friends in the craft brewing world. Praise this change.

Luckily, no regulations will apply to the artistic beer murals down in Georgetown. The PBR murals have a wonderful legacy and are part of a great event, but they certainly do not meet the definition under WAC 314-52-070.

We are very open to discussion here at BeerBlotter.com. Please feel free to comment below. We want to tank Washington Beer Blog for their curiosity!

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New Washington Beer Tax is Bad Idea

Nobody likes a beer tax, right? Check with your local legislator
Kendall Jones is a mere man. But he is doing all he can to ensure that you all know his plight – kill the proposed beer tax that could hike your six pack tag about .50 cents. (update – 4/8/10 – the tax should be about .26 cents per 6-pack)

Kendall is the editor and author of Washington Beer Blog, a wonderful blog about the state of beer in the grand ole state of Washington. While our site keeps the binoculars over the world of beer, it does so from the city of Seattle. So, inevitably this is where our heart resides.

Over the past week, Kendall has written a trio of articles about a proposed “beer tax” that would establish a .50 cents per gallon tax on all beer sold in the state of Washington. The hike is part of a tax plan that would raise roughly $60 million directly from the beer tax, according to the Associated Press.

The beer tax is reported to target only those producers who brew and sell 60,000 barrels of beer per year. This is typically referred to as the microbrewery cut off line. The same line was utilized in a federal beer tax plan that is still being circulated around Washington D.C., which we discussed in an earlier article.

But the tax is a step in the wrong direction – targeting regulation in a time when the growing industry needs coddling and assistance. Breweries in our fair state are finally beginning to grow, beginning to see a financial return and beginning to invest that in the community by creating jobs, buying more locally farmed ingredients and forging more relationships with local distributors, bars and restaurants. The culture is growing – its not time to suppress it. (though we would say that there is no time to suppress it)

Kendall has done such a wonderful job reporting about his disdain for this bill, we thought we would throw our hat into the ring and help publicize his plea. His plea is clear: tax legislation is a “slippery slope” and once it begins its ever so easy to keep pushing.

Washington Beer Blog has proposed that you write your legislator to voice your opinion on the bill. Kendall was even so nice to share his e-mail to his own lawmakers with a note begging plagiarism. We agree. Write your lawmakers – they listen.

Don’t believe that they listen? I wrote my long-winded, mushy plea to my district’s Reuven Carlyle (House), Mary Dickerson (House) and Jeanne Kohl-Welles (Senate) at 8:14 PM. At 8:20, I received an enthusiastic response from Reuven Carlyle, who stated his support for the small brewers of Washington. They are there to listen – and they are doing so.

Please contact your legislator by visiting the state legislator’s website and inputting your address. The site will provide you with your legislator’s e-mail addresses and you can even request a response.

Please take 5 minutes and reach out. 5 minutes might save your plenty of dough on your sixers. Thanks Kendall for your zealous publicity of this bill.

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Bevlog: A Useful and Entertaining Resource for Brewers

Bevlog is at the center of label submissions – needless to say, this Flying Dog label didn’t slide through

I stumbled across a wonderful website that is both informative and incredibly entertaining/intriguing that I thought we would share with the rest of you.

I have been searching for a viable and intriguing beer law blog for some time now. There just is nothing out there. In fact, if you were to google “beer law blog,” this column at BeerBlotter.com comes up on the first page. Wow.

One great site that does appear is BevLog, a blog put together by Lehrman Beverage Law, a firm headed by nationally known beverage lawyer, Robert C. Lehrman. Robert practices out in Virginia but certainly has an audience nationwide. Recently, he moderated a large panel NABCA (National Alcoholic Beverage Control Association) panel entitled “TTB and FDA: Working Side by Side to Regulate Alcohol Beverages.” He knows his stuff, and is constantly at the forefront of beverage law in the US.

Robert and attorney John Messinger edit BevLog. The blog’s main focus seems to be in the area of labeling and marketing regulations. As you probably know as a reader, or as you definitely know as a brewer, the US regulates labeling and marketing materials through the Food & Drug Administration (FDA) and the Alcohol & Tobacco Tax and Trade Bureau (TTB).

These two organizations work together (sometimes not nicely) to take brewer’s money and tell them whether or not their labeling and marketing materials are do not mislead consumers and are not obscene. Of course, they also regulate permitting, sales, transit, and content (FDA) of your beer.

But BevLog is an intriguing blog because the sole focus is to provide you with a glimpse of the most recent eye-catching labels that were approved by the TTB.

From the site:

TTB approves well over 100,000 labels per year. In these approvals you can see the bursting efflorescence of the American (and the world) economy….

bevlog reviews almost all of the 100,000+ beer, wine and spirits labels approved by TTB each year. We try to bring you the most noteworthy.

Check out the site. Recently they reviewed Lagunita’s new label for Wilco Tango Foxtrot, discussing the miltary implications implicit in the label.

If you have any great labels to throw their way, the site is set up to facilitate a dialogue.

I also act as the legal writer at BeerBlotter.com, providing that site with beer law articles. My column, Beer Law & Legis, will continue but will be mirror content produced here at BreweryLaw.com.

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