Saturday, December 5, 2009

Happy Repeal Day!

Happy Repeal Day!

Prohibition ended seventy-six years ago today with the ratification of the 21st Amendment. Well, national prohibition anyway. It merely returned control to the states and of course local prohibition remains in places even today.

It's not officially a holiday, but it should be. I, for one, will be celebrating by raising a pint of something dark and oakey at Brouwer's Big Wood festival tonight.

Wednesday, October 21, 2009

Snow White and the Seven Angry Lawyers

Now for an IP case that does have merit. Posted on Slashfood, here's an article about a promotional campaign for an Australian brewer that was... poorly thought out.

Jamieson's Brewery is launching a new raspberry ale under the slogan "Anything but sweet", aimed at convincing Aussie beer drinkers that fruit beers don't all taste like candy. Unfortunately they used a depiction of a certain "Ho White" and the seven renamed dwarves ("Smarmy", "Randy", etc.).

The Mouse was not amused.

And rightly so. This is clearly a derivative work, damaging to the wholesome reputation of the original movie. And since Disney will push to extend copyright terms any time any of its characters nears the public domain (Mickey first appeared in 1928!), it will also defend those copyrights. And here they'd be justified. Since it's an advertisement selling beer, any Fair Use parody defense will almost certainly fail.

Of course the use of a 'Snow White' character isn't itself a copyright violation. The stories have long been in the public domain, most notably the Brothers Grimm version. Using the basic storyline (Beautiful girl has problems with stepmother, flee to woods to live with creepy short guys, oops poison apple, Prince Charming saves day) wouldn't be a violation at all. But the picture is obviously derived from the Disney characters and this is just what copyright is designed for.

Even though this ad is a lot closer to the original story than Disney's movie ever was.

Monster vs. Vermonster

The brewing community has been buzzing over a trademark dispute between Monster Energy Drink maker Hansen's Beverages and Rock Art Brewery in Vermont. Rock Art makes a barleywine called 'Vermonster' and when it announced plans to market outside the state Hansen's sent them a cease and desist for using their trademark on "Monster". Apparently, Hansen's has plans to enter to alcoholic beverage market. (Almost undoubtedly with an alcoholic energy drink, the difficulties of which I've commented on before.) Of course, Rock Art was already in the alcoholic beverage market...

It would seem that Rock Art is in the right. There is little risk of confusion or dilution of Hansen's mark. Monster's argument that 'Vermonster' might create the impression that Monster endorsed the use of the mark holds little water. Ben and Jerry's makes a Vermonster Ice Cream (Maple ice cream, roasted pecans and caramel swirl. Mmmm....) and Hansen's is not suing them. (And interestingly, B&J aren't suing Rock Art, in a very Vermont kindof way.) But defending a trademark dispute against a large corporation can bankrupt a small company. Yet owner/brewer Matt Nardeau decided to fight, and angry beer drinkers joined in. Calls for boycotts and angry letters to Hansen's appeared all over. Then Nardeau released this video which has 64,000 views as of 3:00, Oct 21st.

Apparently the parties have reached an amicable agreement, as of today Rock Art is claiming victory on their website.

Tuesday, October 20, 2009

Russell H. Everett, Esq.

So I took quite a break after the WA Bar Exam and I suppose it's fitting that I return with this post:

I passed!

I'm filled with an enormous sense of relief and, indeed optimism for the future. And I am so relieved that I won't ever have to take that test again.

I figure it is time to get posting again and I have a few things in mind that should go up tomorrow.

Sunday, July 19, 2009

South Carolina Judge Rules State Ban On Underage Possession Unconstitutional

After today I'm dropping off the face of the Earth until the Bar is over. But saw this and decided on a quick post.

A magistrate in South Carolina has ruled that a state statute prohibiting underage alcohol sale, consumption, and possession is unconstitutional. At the heart of the matter is Article 17, Section 14 of the SC Constitution (emphasis added):

SECTION 14. Citizens deemed sui juris; restrictions as to sale of alcoholic beverages.

Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one. (1973 (58) 864; 1975 (59) 13.)

So technically it does seem that the restriction is limited to sale under the state constitution. But let us not forget Section 2 of the 21st Amendment:
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
The 'delivery and use therein' language has been a headache for the courts since the amendment's adoption. Is a sale a "delivery"? A "use"? Generally though, underage restrictions on sale, use, and possession have been found valid exercises of state 21st Amendment power.
In WA underage possession and consumption is prohibited:
§ 66.44.270. Furnishing liquor to minors -- Possession, use -- Penalties -- Exhibition of effects -- Exceptions
(2)(a) It is unlawful for any person under the age of twenty-one years to possess, consume, or otherwise acquire any liquor. A violation of this subsection is a gross misdemeanor punishable as provided for in chapter 9A.20 RCW.
However, there are always exceptions. And WA is big on protecting in-home privacy.
(3) Subsections (1) and (2)(a) of this section do not apply to liquor given or permitted to be given to a person under the age of twenty-one years by a parent or guardian and consumed in the presence of the parent or guardian. This subsection shall not authorize consumption or possession of liquor by a person under the age of twenty-one years on any premises licensed under chapter 66.24 RCW.
Underage children may be given alcohol by their parents if consumed in their presence. And that 66.24 reference refers to bars and restaurants, so it has to be in a non-licensed premises like their home, or presumably some other private place. Section 2(b) prohibits underage public intoxication, and the only exceptions are for medical and religious use. So presumably parents can't serve their kids at, say, a park BBQ.

And I'm sure that if you started giving little Jimmy his morning bowl of Whisky n' Cheerios, Child Services would be on your case.

The South Carolina case is being appealed. I'm sure they'll find a reason to reverse.

Tuesday, July 7, 2009

Update: Pride of Pyongyang - The Video!

So it seems that North Korea's Taedong River Beer factory has released a commercial! (Alternate video link) Apparently it's quite rare for the government run television station to run advertising of any kind. The music is quite fetching really.

But it has nothing on Mr. Sparkle.

Saturday, July 4, 2009

Ushers Pride of Pyongyang

Here's a fun BBC article about how the old Ushers Trowbridge brewery was sold to the North Koreans, dismantled piece by piece, and moved to to Pyongyang.

See, no matter how bad life is in North Korea at least they have beer.

My favorite part: the seller's first thought was "Am I going to get paid?"

Friday, June 26, 2009

Two Articles

Two interesting articles I came across recently.

1) From Reuters: StatoilHydro Fights Lithuanian Alcohol Ban. Norwegian gasoline company fighting Lithuanian ban on night sales of alcohol at gas stations. Lithuania (like most of the former Soviet bloc countries) has serious problems with alcoholism. We're talking 14 liters pure ethanol per capita annually (the U.S. is closer to 9 liters). Banning night sales at gas stations has apparently dropped alcohol related accidents by 45%. But the company, majority owned by the Norwegian government, is pressing to have the ban revoked, alleging that not all of its competitors are complying (probably true). But still kind of funny, because Norway has some of the most restrictive alcohol laws in the world. You can't even buy alcohol at gas stations in Norway.

2) From the BBC: Alcohol Link to one in 25 Deaths. That's worldwide. It's 1 in 10 in Europe, and 1 in 7 in Russia...

Monday, June 22, 2009

Pennsylvania - The Sheetz Case

Last week the Pennsylvania Supreme Court handed down its opinion in Malt Beverage Distributor's Organization v. Pennsylvania Liquor Control Board. At issue was a law which required stores to allow on-premises consumption of alcohol in order to sell six-packs of beer for off-premises use. The court stolidly refused to legislate from the bench and upheld the law.

It's interesting to read some of the editorials about it, because they are perfect examples of modern perception of "archaic" liquor laws. True Pennsylvania has some of the more draconian liquor laws in the country, but the court was perfectly correct to uphold them.
"While a policy determination in this regard may well be accomplished by our legislature, it is not our role to sanction such a momentous transformation," Justice Max Baer wrote.
So the lesson is: angry Pennsylvanians contact your state legislature.

Friday, June 12, 2009

Pyramid Workers Arrested For After-Hours Fest

From the Seattle Times. Some (presumably now former) employees of the Pyramid Brewery in SoDo broke into the brewery for a few pints after hours. And were promptly arrested. Ooops.

Pyramid has been going through some tough times recently. Remember they were bought out by Magic Hat last year. Recently they've rebranded all their beers. Which now seem weird and scary to me. Their iconic Pyramid Hefeweizen (the archtypical American Wheat Ale) is now 'Haywire Hefeweizen'. Because apparently that's MORE EXTREME!!!!!!!!

Apparently it's also now five times larger. EXTREME!!!!!!

Thursday, June 11, 2009

New TTB Organic Wine Labeling Policies

Quick post. The TTB has released a short information sheet covering their new policy on labeling organic wines. Basically, you can't just say "Made with Organic Ingredients" anymore, unless all the ingredients are in fact organic. So you'll have to say, for example, made with "Organic Merlot and Non-Organic Cabernet grapes" or "55% organic grapes and 45% non-organic grapes". Which is all fine and dandy and prevents consumer confusion in the often poorly regulated organic market.

But the sheet doesn't say how they are treating the wine adjuncts and additives. Is Isinglass organic? Bentonite? (Is it organic dirt?) What would an organic yeast look like? Oak barrels?

But it's back to the Bar Prep for me. Civ Pro, Crim Pro, and Trusts and Estates practice exam tonight. Good times.

Sunday, May 24, 2009


Right, I'm on the ground in Seattle. But Bar prep starts shortly and the move is still in progress...

Let's just say updates will be spotty for a bit longer.

Friday, May 8, 2009

It's Legal to Move Homebrew in Washington!

Word on the vine is that Gov. Gregoire signed Senate Bill 5060 into law on Wednesday, making it legal to remove up to 20 gallons of homemade beer or wine from your house for tastings, competitions, and most importantly enjoyment outside the confines of your house. Hopefully this will pave the way for a robust new calendar of competitions and national events like the AHA conference.

No update yet (3PM EST) on the Washington Homebrewers Association website, but I'm sure hundreds of homebrewer thanks go out to Mark Emiley and the rest of the WAHA crew for all their work in pushing this bill through.

Monday, May 4, 2009

Washington Homebrew Bill Update

Washington Senate Bill 5060 has passed the Senate and is headed to the Governor's desk for signing. If you've got an inside link to Gregoire, drop her a line!

Not that the bill is particularly controversial.

Lake Chelan AVA Established / Paso Robles Westside AVA Expansion Revoked

Quick break from finals to post this.

Beginning May 29, 2009, the TTB will recognize another American Viticultural Area in Washington State. The new Lake Chelan AVA will cover 24,000 acres around Lake Chelan, and be nested within the current Columbia River AVA. Don't know much about its wine potential personally...the only time I've ever been to Lake Chelan was when we needed an abandoned desert area in which to film a Mad Max style car chase for a school movie project. No word on whether Thunderdome Chardonnay will be available anytime soon...

Secondly, the TTB has withdrawn its notice of proposed rulemaking for the creation of the Paso Robles Westside AVA in California. Without getting into it too much there appears to have been significant disagreements among Paso Robles' vineyards about both the name and geographic significance of the proposed AVA. The notice does give an excellent view into the sorts of commenting and considerations that go into establishing a new AVA.

Wednesday, April 29, 2009

Walla Walla Wineries Wimpering Woefully Wounded

Ok enough tongue twisters. AP article on the recession's effect on Washington's wine country.

Now off to my Professional Responsibility final...

Friday, April 17, 2009

Beer Wars Live Review

So we got about seven of the homebrew crew out for Beer Wars Live out at AMC Sunset Place in South Miami last night. All in all a pretty good time, stopped off at the Titanic before the show for dinner and, appropriately enough, mugs of Arrogant Bastard and Dogfish 90 Minute.

The entire Beer Blogosphere, such as it is, will no doubt be buzzing about this so I'll keep my thoughts short.

The Good.

It was reasonably well produced and, come on, for a movie about beer and corporate competition it was pretty darn entertaining. There were some good moments of humor interspersed throughout, usually by creative use of old advertising and industry videos. It was also fun to see various beer personalities get riled up. Greg Koch and Sam Caglione are further cemented in my Hall of Beer Heroes. The 25 or so people in the theatre seemed to be having a good time. (Yeah it sold out in Boston, but hey, 25 people who care about beer in South Miami is an incredible showing!) Also the live simulcast was great, purely because it was a bit spotty and unpolished. It made the whole thing seem more personal somehow, even though there were 400 theatres involved.

The Bad.

Ok. Anat grated on me a little bit, nothing serious but at times she's a bit like a shrill Michael Moore. That didn't bother me too much, though I'm sure many reviews will be less kind. And sometimes I felt the history behind all this was treated a bit too lightly, I'd like to have seen a bit more about the forming of the Three-Tier system after Prohibition.

But my biggest problem BY A MILE is with her premise: that we need to ditch, or at least seriously rethink, the Three-Tier system. No one doubts that there are some serious problems with the current wholesaler tier. Yes, the large breweries (and distilleries/wineries as well! This isn't just a beer problem!) have gained more control over distribution than they were ever intended to. Yes, the small number of powerful distributors often limit choice and create barriers to entry. Yes, they sometimes break the law by offering all kinds of illegal perks, such as bulk discounts, free merchandise, advertising freebies, and sometimes outright bribes. But the distributors are creatures of statute. The monopolies distributors enjoy are granted by the states under the 21st Amendment. And there are perfectly good reasons that the system was structured this way. Distributors are the choke point between retail and production, which makes monitoring all three easier for the state. Because there are relatively few distributors, and they are often geographically limited, there is little incentive to compete, meaning that there is little incentive to make alcohol dangerously cheap and plentiful. Because their licenses are expensive, and profitable, distributors are incentivized to stick to the rules. Usually they get a single warning, then their license is revoked. In practice, even a warning would make investors nervous enough to pull out, spelling danger (possibly doom) to the company.

State legislatures and LCBs could change/actually enforce the restrictions placed on the middle tier, if there was enough political will to overcome the mountain of money in the way. Hopefully this movie will help educate and inspire craft beer fans to start pressuring their legislatures to do just that.

I guess my biggest problem is that while she suggests some alternatives, she doesn't really address the reasons why we have a Three-Tier system and the problems and consequences of tinkering with it. For example, she suggests allowing self-distribution for small brewers. Ok fine, but it's not so simple. Just take a look at the current mess regarding wine shipping and self-distribution. Appart from the cost to the breweries of licensing and bonding, compliance with the complicated regulations concering distribution would take some serious effort. And it would create that much more work for TTB agents and state liquor control officers to monitor that many more distributorships.

Finally, in ignoring the problems that created the Three-Tier system she ignores the inevitability that removing the system will only cause those problems to resurface. If the tied house and antitrust problems that arose before prohibition were bad then, when there were a thousand regional breweries, none with clear market dominance, imagine what it would be like if AB In-Bev and SABMiller could start buying into retail and distribution chains now. That little sliver of grocery store shelf space devoted to craft beer would be gone forever.

I gather that some of the Fresh Beer crew (our local distributors of Shipyard, Avery, Stone, Dogfish, Rogue, etc. i.e. The Font of All that is Good and Holy) were out at South Beach Cinemas for this. I'd like to get their opinion on it, I'll see if I can.

Monday, April 13, 2009

Want to buy Rolling Rock?

...because Anheuser-Busch InBev is thinking of selling. Which is funny because three years ago AB bought Rolling Rock from InBev for $82 million dollars. One possible suitor is North American Breweries Inc. (a brewery holding corp crated by KPS Capital Partners), which recently purchased Labatt USA from AB following the DOJ's stipulations for the AB/InBev merger. Oddly enough, Labatt also used to own Rolling Rock.

Is there no love for the Pennsylvania Heineken?

Sunday, April 12, 2009

News Updates

So yes I'm still alive, but with graduation approaching, final papers due, Bar applications, moving arrangements, etc. I've been pretty busy. Updates will probably be spotty for a couple months at least, certainly until after the Bar.

Ok so here's some legal and personal updates:

First up: I have registered to take the Washington State Bar Exam! We'll most likely be moving somewhere between Seattle and Tacoma after graduation. I cannot understate how excited we both are to be moving back to the Pacific Northwest.

Wine News
  • EU suspends sales of US wine using controverted terms.
This is somewhat old news but if you haven't heard the EU has finally gotten fed up with the continued American use of semi-generic terms such as 'Clos', 'Chablis' and 'Vintage'. Last September the EU sent a letter notifying the US that it would not extend the grace period granted for such terms in the 2005 Agreement between the US and the EU regarding the trade in wine. EC Regulation 113/2009 came into effect March 10th, restricting future sales of all US wines using the controverted names to the existing stock on hand. Almost certainly US trade reps are meeting with the EU to work this out as we speak. Er, I speak. Or type.
  • No wine in NY grocery stores.
A bill proposed to allow sale of wine in New York grocery stores is dead in the water. Originally it was part of a budget fund-raising move, the new license fees would have brought in millions of dollars. However, the bill was shot down by the liquor company lobby and a coalition of police, concerned parents, etc. It's another interesting example of the conflict between the ideals of the prohibition-era laws that set up the NY alcohol trade, and the entrenched power thus vested in the liquor stores. Does restricting wine (which in 1933 America was generally high-strength rotgut, compared to the "refined" table wines of today) sales to liquor stores still serve a temperance goal? Or does it just line the pockets of a protected business? Or both? A good question for any state to ponder, as I believe only 35 states or so allow wine sales in grocery stores.

Beer News
  • Redhook/Widmer take a hit
Portland's Widmer Brewing turns 25 this year, but also took a serious hit from the recession. The Portland Business Journal reports that the company created by the Redhook/Widmer merger, Craft Brewer's Aliance, lost $30 million last year. The spike in raw materials costs that hit all brewers and the economic downturn seem to be the culprits. On the bright side, they still maintain their distribution agreement with AB/In-Bev (which also owns 1/3 of the CBA) and we've begun to see their Kona brand here in Miami. Anecdotal evidence indicates that it's refreshing and delicious.
  • It's now legal to homebrew in Utah, Washington getting there.
Utah Senate Bill 187 and House Bill 51 passed, making it legal to homebrew in Utah and revamping the state's alcohol laws.

Washington State Senate Bill 5060 passed the House (90-3) and now goes back to the Senate for concurrence. The bill faced minor amendments involving wording in the House Labor and Commerce Committee. It would still allow removal of up to 20 gallons of homebrewed wine or beer, not for sale, and for private use including at events and competitions.

Beer Wars

Also a 400+ simultaneous theatre showing of the documentary Beer Wars is happening this Thursday, April 16th. I've got my tickets. Expect a review (and about a thousand others on the beer-bloggernets)

Friday, March 13, 2009

Update: 3.2 here to stay in Utah

The Utah Senate decided against passing Utah House Bill 349, meaning 3.2% ABW taps are here to stay in the Beehive State.

Tuesday, March 10, 2009

Sweet Lion of Zion! Utah Reforms its Liquor Laws

Over the last few weeks there's been a hubbub in Utah involving a serious reformat of the state's liquor laws. Utah has historically had the most stringent alcohol laws of any state. (Arguably at least, several other states are quite restrictive as well.) It's important to remember that roughly 2/3 of the residents of Utah are Mormons, with around 80% of the legislature being a member of the LDS. So alcohol is treated far more as a vice than as a tax source or domestic industry.

Here's some highlights:
  • Utah is one of 18 monopoly states, and all wine and liquor for consumption off-premises must be purchased from state-run stores.
  • "Beer" is limited to 3.2% Alcohol by Weight (so 4% ABV), and may be purchased for consumption on-premises at most restaurants, taverns, airport lounges, etc.
  • Any beer over that is labeled "Heavy Beer" and regulated like liquor.
  • Restaurants may be licensed to serve all liquors, but they must be served to patrons by waitstaff, for on-premises consumption, with food.
  • Utah allows 'Private Clubs' where hard liquor and mixed drinks may be consumed on-premises, and maintains a byzantine system of temporary "memberships" allowing access for visiting patrons.
  • Hours of Sale are restricted, usually Noon-Midnight, never past 1:00 AM.
  • Utah's ratification made it the 36th and final state required to ratify the 21st Amendment.
  • Utah's liquor licenses are distributed according to a ration based on the census, strictly limiting the number of licenses in many areas.
When the Winter Olympics came to Salt Lake in 2002, the tourist outcry over the scarcity of alcohol led to some liberalization, and now in 2009 the state seems to be going through a major overhaul. There are several bills going up, including:
  • Senate Bill 187 - which would replace the private club system with an electronic ID registry, remove the "Zion Curtain" (a glass partition that servers must prepare drinks behind and then bring the drink around to bar patrons by hand) allowing service across bars, and includes a requirement for new restaurants to have a screened area where drinks are prepared out of sight of families and children. Existing restaurants will be grandfathered, and given up to $30,000 to remodel their premises should they wish.
  • House Bill 349 - which would allow draught sales of Heavy Beer, and is controversial amongst Utah's growing craft brewing industry, who have made a name on the strength of their 3.2% beers and the monopoly granted by that restriction. Check out this article on Utah's craft beer scene. A few years ago we drove through and visited several of these breweries and they were quite good. Mmmm Polygamy Porter ("Bring Some Home To The Wives!")
  • House Bill 51 - a homebrewing bill that will bring Utah in line with most of the states in the country, allowing production of 100 gallons of homebrewed beer and wine without a license.
Here's some more posts and articles:

Update - Washington Homebrewing Bill

And we're back. Had to send the ol' laptop in for some much needed TLC. By which I mean an new motherboard and screen.

Washington State Senate Bill 5060 passed through the Senate unanimously on February 27th. Now it's on to the House Labor and Commerce Committee on March 13th. More info at the Washington Homebrewers Association.

Wednesday, March 4, 2009

BBC: Young Finns Debate Finland's Alcohol Laws

Saw this clip on the BBC News this morning. What is most interesting is how these students appear to intuitively grasp the reasons for many aspects of alcohol regulation that were incorporated in the post-prohibition three-tier system in the U.S., (particularly in monopoly states). So for example they talk about how it's good that discount pricing is prohibited, and how they see taxes impacting consumption. Finally, related to the Blue Laws post of a few days back, that perhaps there are reasons people shouldn't be able to buy one Euro 9% ABV Baltic Porters at 6AM on a Sunday...

Monday, March 2, 2009

2009 Brewers Association Style Guidelines Released

The Brewer's Association has released their 2009 style guidelines, which can be downloaded in .pdf here. Charlie Papazian's Beer Examiner article is here.

These guidelines are designed to assist brewers and brewing competitions (including the Oscars and the Emmys of the Beer World: the Great American Beer Festival and the World Beer Cup) in classifying and judging commercial beers, while also providing a sort of "State of the Union" concerning what styles are currently produced, which historical styles are being resurrected by craft brewers, and which are fading from production.

This year they added two new styles, bringing the total to 141. The two new styles are:
  • American-Belgo Style Dark Ales - These dark beers portray the unique characters imparted by yeasts typically used in fruity and big Belgian-style ales.
  • Session Beer - Ease of drinkability is a character in the overall balance of these beers. Beers in this category must not exceed 4.1% alcohol by weight (5.1% alcohol by volume).
I am actually quite happy with these two new styles. The American-Belgo styles the BA has added over the last couple years reflect the growing acceptance (and commercial success) of innovative American brewers who take the Belgian baselines and run with them. Russian River's Salvation Dark Ale, and other breweries like Lost Abbey, Jolly Pumpkin, New Belgium, Ommegang, Unibroue, and even relative newcomers to the Belgian game like Brooklyn Brewing come to mind. Nonetheless, the Belgian breweries (at least the non-Trappist ones) have never shied from creativity, and recent bottles have shown an similar effect happening in Belgium. For example, Houblon Chouffe was first brewed in 2006, and is a Belgian IPA-Tripel...

Similarly, session beers are becoming a marketable style of their own. For example, Full Sail Brewing makes a beer called Session Lager, which is supposed to be an all-pilsner-malt pre-prohibition lager like your grandaddy used to drink. Interestingly, at 5.1% ABA it is on the far maximum of the style... "Lawnmower Beer" (so called because either you want one after mowing the lawn, or because they're low enough alcohol that you can drink them safely while mowing the law. Jury's out on that one.) has been a term in beer circles for a long time, and breweries are cashing in on the term. The best example I can think of is Saint Arnold Brewing's Fancy Lawnmower Beer. However, the original spirit of the term 'session' simply meant a beer you could drink a lot of for hours at a time and not pass-out and wake up half-dead. So this should include a wide variety of Cream Ales, Blondes, American and Mexican light lagers, and pretty much all the British Milds and Bitters. Does this category really define a 'separate' style?

There is also an interesting crossover to TTB labeling regulations here. As written about earlier, the TTB requires a Type/Class designation for all malt beverages. Generally these are: "Malt Beverage containing greater than 0.5% Alcohol by Volume". So most beer styles receive a type designation that has absolutely nothing to do with the actual style itself. I suggested that perhaps the TTB could look to things like the BA Beer Style Guidelines to refine these a bit and prevent larger breweries from watering down styles honed by smaller craft breweries, but that the costs of enforcement and potential stifling of new styles, creating a sort of onerous similarity to French wine appellation tasting panels, would outweigh any benefits. Still, it is interesting to compare the differences in how the industry defines the styles and the government.


It seems that when writing a blog on the internet either one of two things will happen. Either you set out with no particular topic and one developes organically over time, or you set out on a particular topic and it developes into something more. Over the months it seems that this blog was beginning to develope a split-personality, and had strayed slightly from the original core focus on alcohol law issues. So for increased clarity I've placed the past posts on homebrewing, our local/organic CSA, and things like Florida's habit of raining iguanas on a new blog: Updates will continue on both, and they will of course be crosslinked with a blogroll in the left column.

Ok, administrative issues over, time for a new post.

Friday, February 27, 2009

Economic Downturn = End of Blue Laws?

Interesting Time article about efforts in several states to alter or eliminate bans on Sunday sales of Alcohol. What I find most interesting is that the arguments raised on both sides represent a very current debate about alcohol regulation and consumption.

On the one hand the repeal argument centers around increased tax revenue for states with ailing budgets, coupled with a modern consumer mindset of "I want what I want and I want it NOW". These forces are heavily at work in modern alcohol control policy. So for example many of the states contemplating repealing Sunday Blue Laws are in New England, and they are doing so because people are hopping the border to states that allow sales on Sunday. States are therefore losing tax revenue to neighboring states. On top of that, to many people these laws just seem silly. In an age of 24/7 supermarkets it seems ridiculous that one can't buy booze whenever one feels like it.

Which is where the counter-argument comes in. The article frames it as a sortof dogmatic Christian Right stance, and perhaps there is an element of that, but it is more than just the old warhorse of "Alcohol Bad! Family Good!" Many cities and/or states restrict the hours that alcohol is for sale, even if they allow sales on Sunday. And there are good social policy reasons for this. It's generally better if people who drink a little too much have to go sleep it off, rather than popping down to the corner store at 4:00 AM for another fifth of tequila.

At the heart of Sunday Blue Laws is an appeal to what the Supreme Court has called in its more recent cases the "Core Purposes" of the 21st Amendment. These are supposed to be the original goals of the Amendment, including things like taxation, orderly markets, and temperance. (And these 'goals' are not without criticism, Justice Stevens called it "a totally novel approach to the 21st Amendment" in his dissent in Bacchus v. Dias. Even today it's not entirely clear what these purposes are or are not).

Here it looks like we have a conflict between taxation and orderly markets on the one hand, and temperance on the other. If people are jumping borders on Sunday, states lose both tax revenue and control over the time, place and manner of the sale. And there is the problem of "Blood Borders", where consumers cross the border, drink alcohol, then drive back home while intoxicated. So the state's core purposes can be aided by a repeal of the Blue Laws and subsequent regulation of Sunday sales within the state's three-tier system.

On the other hand, the arguments for Temperance ignore the economic realities on the ground and speak to more idealistic social engineering. Some people won't bother driving across the border for a six-pack, and if they run out of alcohol they just won't drink. And a day where people drink less, maybe spend some time with their families, get some work done around the house, go out for a movie, etc. can't be all bad for society. Not only that, by forbidding sales on a specific day the state subconsciously reinforces the idea that a) it controls alcohol and that alcohol is not just another consumer good, and b) alcohol is in some sense still a vice, which is why it is regulated the way it is.

But ultimately such arguments seem a bit antiquated, and the problem for modern temperance control is crafting laws that keep the evils of excessive consumption down, but that don't make you look like some hatchet-wielding, saloon-smashing, "Demon Rum" shouting nutcase. And perhaps the repeal of Blue Laws, with a subsequent absorption of the market demand into the state three-tier, accomplishes this better than the unstated "Don't drink, go to Church." of existing Sunday Blue Laws.

Thursday, February 26, 2009

Snipes Mountain AVA

Been meaning to get to this since last week. The TTB has established a new American Viticultural Area (AVA) in the Snipes Mountain region of the Yakima Valley, Washington State, effective February 20th, 2009. The new AVA exists within the current Yakima Valley AVA, which in turn is within the greater Columbia Valley AVA. As you might expect, this nested AVA is quite small, at 4,145 acres it's the second smallest in the state according to Wine Press NW. But it is huge compared to the Cole Ranch AVA in Mendocino County, California, which is only 62 acres. Also, note that the new AVA incorporates Bridgman Cellars, makers of a particularly favorite Viognier of mine. (Image from WinesNW)

AVAs exist so that winemakers from exceptional regions can denote that their wines are produced with a minimum of 85% grapes from that region. The requirements for establishing an AVA include local or national recognition of the name and boundaries, historical evidence of viticulural use within the area, and data on the special climate, elevation, soil , etc. of the region. For an interesting look at the process and requirements check out the Final Ruling on the Snipes Mountain AVA.

It's interesting to note that the Notice and Comment phase of the application brought in six comments, one of which brought up a potential problem involving a nearby wine region going by the name of "Snipes Canyon". The TTB responded to this:
"TTB believes ‘‘Snipes Mountain’’ is readily distinguishable from ‘‘Snipes Canyon.’’ Further, TTB is not aware of any conflict with existing brand labels that would occur if the viticultural area is established as proposed."
Though it seems the TTB isn't worried about this, perhaps the wineries should be.

The AVAs in the Napa Valley region led to a host of litigation regarding the protection and use of the AVA in trademarks and COLAs. (See Bronco v. Jolly, 95 P.3d 422 (Cal. 2004); Bronco v. Jolly, 29 Cal.Rptr.3d 462 (Cal. Ct. App. 2005))

In Bronco, the Napa Valley Vintner's Association challenged Bronco's use of several Napa AVAs in its brand names "Napa Ridge", "Rutherford Vintners", and "Napa Creek Winery". These brands had been grandfathered in under 27 CFR §4.39(i)(2), but ran afoul of a California law prohibiting the use of an AVA name when the grapes originated elsewhere, in this case Lodi. 27 CFR §4.39(i) governs the prohibited uses of AVAs, and reads (emphasis provided):
(i) Geographic brand names.
(1) Except as provided in subparagraph 2, a brand name of viticultural significance may not be used unless the wine meets the appellation of origin requirements for the geographic area named.
(2) For brand names used in existing certificates of label approval issued prior to July 7, 1986:
(i) The wine shall meet the appellation of origin requirements for the geographic area named; or
(ii) The wine shall be labeled with an appellation of origin in accordance with § 4.34(b) as to location and size of type of either:
(A) A county or a viticultural area, if the brand name bears the name of a geographic area smaller than a state, or;
(B) A state, county or a viticultural area, if the brand name bears a state name; or
(iii) The wine shall be labeled with some other statement which the appropriate ATF officer finds to be sufficient to dispel the impression that the geographic area suggested by the brand name is indicative of the origin of the wine.
(3) A name has viticultural significance when it is the name of a state or county (or the foreign equivalents), when approved as a viticultural area in part 9 of this chapter, or by a foreign government, or when found to have viticultural significance by the appropriate ATF officer.
After a million dollars of litigation going up and down the California court system Bronco lost the use of its brands.

Of course Bronco was a case where there was a specific California law prohibiting that sort of labeling and Bronco was making an enormous volume of wine with brands purchased specifically for their misleading names referencing a world famous AVA.

A quick search didn't turn up anyone using the actual brand "Snipes Canyon", though Brian Carter Cellars has a named Snipes Canyon vineyard. And of course any Snipes Canyon wines would still be entitled to use both the Yakima and Columbia Valley AVAs. So while it doesn't look like there will be a problem immediately, this is exactly the sort of situation that makes winery trademark lawyers nervous, so it's unlikely anyone will risk using the trademark.

Final note: there is a Snipes Mountain Brewery. Which raises the question of geographic labeling of beer all over again.

Update - Washington Homebrewing Bill

Senate Bill 5060 could go up for a vote any day now. Contact your senator if you live in Washington, I sent mine an email today! More at the Washington Homebrewers Association.

Monday, February 16, 2009

Obama labels

Interesting post over at Bevlog, covered in better and greater detail than I have time for. But the gist is that the TTB is really putting the hammer down on Obama-themed beverages.

The TTB generally frowns on putting anything on a label that might make it look like the Government endorses it, or uses someone's name without permission. These prohibited practices are listed for all alcoholic beverages, for example 27 CFR 4.64 for wine, and 27 CFR 5.42 for distilled spirits.

So for example Section 6 of 27 CFR 5.42 reads in part (emphasis added):

(6) A trade or brand name that is the name of any living individual of public prominence, or existing private or public organization, or is a name that is in simulation or is an abbreviation thereof, or any graphic, pictorial, or emblematic representation of any such individual or organization, if the use of such name or representation is likely to falsely lead the consumer to believe that the product has been endorsed, made, or used by, or produced for, or under the supervision of, or in accordance with the specifications of, such individual or organization: Provided, That this paragraph shall not apply to the use of the name of any person engaged in business as a distiller, rectifier, blender, or other producer, or as an importer, wholesaler, retailer, bottler, or warehouseman, of distilled spirits, nor to the use by any person of a trade or brand name that is the name of any living individual of public prominence or existing private or public organization, provided such trade or brand name was used by him or his predecessors in interest prior to August 29, 1935.

(b) Miscellaneous. (1) Labels shall not be of such design as to resemble or simulate a stamp of the U.S. Government or any State or foreign government. Labels, other than stamps authorized or required by this or any other government, shall not state or indicate that the distilled spirits are distilled, blended, made, bottled, or sold under, or in accordance with, any municipal, State, Federal, or foreign authorization, law, or regulations, unless such statement is required or specifically authorized by Federal, State, municipal, or foreign law or regulations. []
So for example, Revenue Ruling 54-340 (yes that was in 1954) concerned the use of the American Flag on a distilled spirit bottle, featuring the slogan "Fight Communism!" The label was approved so long as the flag was removed, as its use was found to constitute a "stamp of the U.S. Government."

"Fight Communism!" was ok though.

Of course, there's an American Flag and then there's an American Flag. Stoudt's Brewing Co's (amazing!) American Pale Ale COLA was approved in 1998. (That's 'Certificate of Label Approval', not Pale Ale Cola which just sounds unpleasant.)

So while he was just a candidate, the use of Obama's name was iffy but so long as he didn't mind too much they let it slide. Now that he's the President they are really cracking down.

Of course, like the Stoudt's label there are dubiously legal (but apparently TTB approved) ways around this.

For example, Pittsburgh's East End Brewing made this Belgian Tripel/IPA called "Ugly American".

Remind you of anyone?

Sunday, February 1, 2009

Saint Somewhere Brewing on Good Morning America

Tarpon Springs' own Saint Somewhere brewing was featured on Good Morning America. Which is interesting, as it's a new and very small (150 barrel annually?) place. They had Austin Wilson, the publisher of DRAFT magazine, on discussing pairing beer with buffalo wings, clip is here, and near the end he mentioned this up and coming brewery.

First off, I am happy that they were getting national attention. Kudos to anyone trying to make a Belgian craft brewery anywhere in the US, let alone braving the brew-wastelands of Florida! Secondly, this is really interesting because St. Somewhere's beers are in their, shall we say, infancy? We were all excited when the first bottles made it down to Miami, and eagerly purchased the whole lineup to give them a try. And they met with near-universal disappointment. We tried the saison and an amber about a year ago. The saison was completely flat, which is *blasphemy!*, and the amber, though carbonated, was sweet and had a certain homebrew edge about it. Both corks had to be removed with a wrench. That said, the saison made it into a tasting last Friday night featuring a dozen Farmhouse competitors and I must admit it had improved. It was still waaaay over-spiced, but a significant improvement. Still had to wrench it though...and to be fair, I have to wrench some of my corked Belgians too :)

This just goes to show that recipes and techniques change, and that a beer that was terrible in the past may be great tomorrow. Cheers to the brewer for taking the leap, especially in Florida. Hopefully he'll be able to upgrade some facilities with some increased Superbowl cashflow and really wow us in the future.

Update: Washington Homebrewing Bill

Senate Bill 5060 has passed through the Washington State Senate Labor, Commerce, and Consumer Protection Committee by unanimous vote. Now it's on to the Senate Rules Committee to try and get scheduled for a vote on the Senate floor. If you're a homebrewer in Washington, contact your state senator!

More info at the Washington Homebrewers Association.

Tuesday, January 20, 2009

Washington Homebrewing Legislation

Homebrewing is regulated differently in every state. In some, the regulations are as open as the Federal Statutes. In Utah and Alabama, it remains illegal. (Though legislative efforts are underway in both states.) In Washington, RCW 66.12.010 allows untaxed home production of wine and beer in the home, so long as it is not sold. However, and this is a big however, RCW 66.28.140 has been interpreted to severely limit the transportation of any homebrew produced in the state. The statute reads:
RCW 66.28.140 - Removing family beer or wine from home for exhibition or use at wine tastings or competitions — Conditions.

(1) An adult member of a household may remove family beer or wine from the home for exhibition or use at organized beer or wine tastings or competitions, subject to the following conditions:

(a) The quantity removed by a producer for these purposes is limited to a quantity not exceeding one gallon;

(b) Family beer or wine is not removed for sale or for the use of any person other than the producer. This subparagraph does not preclude any necessary tasting of the beer or wine when the exhibition or beer or wine tasting includes judging the merits of the wine by judges who have been selected by the organization sponsoring the affair; and

(c) When the display contest or judging purpose has been served, any remaining portion of the sample is returned to the family premises from which removed.

(2) As used in this section, "family beer or wine" means beer or wine manufactured in the home for consumption therein, and not for sale.

As I understand it, the state Liquor Control Board has interpreted this statute not just as listing the conditions under which homebrew competitions may take place, but, in conjunction with the "manufactured in any home for consumption therein" language of RCW 66.12.010, as listing the exclusive conditions underwhich homebrew may be legally removed from your house.

Senate Bill 5060 is to go before the Washington State Senate Commerce, Labor and Consumer Protection Committee today, where it will hopefully receive favorable treatment. The bill amends Washington's alcohol regulations to clarify the wording of RCW 66.28.140. It would allow removal of up to 20 gallons of beer and wine produced at home, and amends section 2 to include not only family production, but also homebrew produced for exhibition or use at organized beer or wine tastings, competitions, meetings, or conferences, or use by internal revenue code section 501(c)(3) nonprofit organizations, and not for sale. Leftover beer from competitions would no longer have to be returned to the brewer (which would be frustrating and near impossible!) This would allow larger homebrew events, such as the AHA Conference or AHA rallies, and smaller club competitions. It would also allow use by non-profits, for example you would be able to donate a keg to a church social, or other non-profit organization event.

However, to me it is still unclear whether you could donate one for a non-profit fundraising event like an auction or raffle. That is, if it's legal to consume your keg at a charity auction, would it be legal to auction the keg itself? Or the brewing of a batch for the winner? This is often a serious grey area in most states.

Presumably the bill will pass the committee and hopefully we'll see it voted on in this session. More info at the Washington Homebrewers Association.

Friday, January 16, 2009

The End of Alcohol Energy Drinks(?) And The Quiet Death of Zima

A week before Christmas MillerCoors issued this press release, and voluntarily pulled their alcoholic energy drink Sparks from the market. This follows a similar move by AB last year, in which that company reformulated their Tilt brand. With the two biggies voluntarily bowing out, this could be the end of alcoholic energy drinks. At least, for a few years...

What's interesting about this is that the breweries voluntarily agreed to reformulate the product due to pressure applied by state AGs, though they were not currently breaking any laws. Certainly any state could easily amend their regulations to prohibit pre-mixed caffeinated alcohol drinks, but that wasn't the case here. The big debate currently in alcohol law is whether and to what extent the "old" values of temperance and control still apply, and to what extent the free market should be allowed to take over. These drinks are products of the new millenium, and the question arises, "We have caffeinated soft drinks. We have malt-beverages. Why exactly can't we combine them?" The answer seems to be less in the black-letter law and in the original spirit of post-prohibition regulation: caution, and restraint. The jury is still out on the combined health and safety effects of alcohol and caffeine, but consumption of these beverages does seem to indicate a tendency toward excess. Particularly in the younger demographic. Which makes the states wary...

One gets the feeling from the press release, and a Sparks FAQ still up on the web (note to companies: "removing current content" from the website does not make it go away altogether...) that their big concern is that they will be prosecuted for marketing the product to underage consumers, hence the repeated denials of any such conduct. The fact that these energy drinks are quite popular among the highschool and college set certainly is a liability for them in that respect. It's interesting that Miller agreed to pay over $500,000 to the AGs to settle the matter, and is illustrative of the gun-shy tendencies of producers faced with the sortof legislative netherworld that alcohol advertising exists in.

On a similar malt-beverage note: in the last few months Zima went quietly into that good night. Not exactly breaking news, but I've been meaning to mention it. Zima will go down in history as a perfect example of what can go both right and wrong when introducing a new alcoholic beverage, and how companies should adapt to the demos that embrace their product, not try to force the product on an uninterested group. If men think Zima is a laughable girly drink, don't try to convince them to drink it. Here's a much better article on the subject from Slate. Here's another fun one, in which it's argued that the discontinuation will allow MillerCoors to "focus on more preferred brands like Sparks".


Wednesday, January 14, 2009

No More Free Beer At Busch Gardens

Article in the St. Pete Times. For those who were wondering whether InBev's stated goal of reigning in the corporate excess of Anheuser-Busch would impact consumers, it begins. Busch Gardens will stop offering free beer samples at their hospitality areas starting the 25th. (You've got 10 more days Florida! And, Virginia too I guess.) Apparently they are also revamping the parks' various restaurants, and there is some question whether (and which) InBev brands will be in, though they will probably put Stella Artois in at the very least. InBev has also mentioned that it is considering selling the parks, so perhaps this is step on in making them more family-friendly for a future non-brewery owner?

Monday, January 12, 2009

Northwest Absinthe / Washington Alcohol Law

Since we are in all probability moving back to Washington in a few months I've been paying more attention to Washington's own alcohol laws and general goings on.

First: there's a new microdistillery in Woodinville, (conveniently located near my in-laws!), called Pacific Distillery LLC. They are in the process of producing their first commercial batches, gaining label approval and approaching the WA Liquor Control Board for distribution. The man behind the works is Marc Bernhard, an herb farmer turned distiller. He's starting off with a flagship gin ("Voyager Dry Gin") and...get ready Washington, an Absinthe! Called 'Absinthe Pacifique', Pacific Distillery uses medical grade ethanol which they infuse with high quality herbs to make their absinthe. This is big news because until recently Washington has made it very difficult to open a distillery, I believe Pacific is the second opened since Prohibition ended! (The first being Spokane's Dry Fly Distilling, who have only been around about two years themselves and who have a cool distiller's class they teach out of their distillery)

Their blog is here and there's an article on them in the Seattle Weekly here. Marc mentioned that he uses actual Artemisia Absinthium (Grand Wormwood) as well as Artemisia Pontica (Roman Wormwood) so I'm wondering whether he had trouble with the TTB or FDA on that one. I know many of the recent commercially available absinthes have had altered recipes to cut down on the Artemisia Absinthium (and therefore the thujone content).

Second: I bet that part of the reason that Pacific was able to open was Washington's new Craft Distiller's License. The licenses began June of last year, after SHB 2959 was passed, which amended RCW 66.24.140, and adds a new section RCW 66.24. The new license applies to distilleries producing less than 20,000 gallons a year, and at least 50% of whose ingredients come from within Washington state. The license costs only $100, while the normal distiller's license is $2000. This should raise eyebrows to those familiar with dormant commerce clause issues in alcohol law, as the state seems to be doing a similar sort of thing the Supreme Court shot down in Bacchus Imports, LTD. v. Dias, 468 U. S. 263 (1984), while at the same time giving the sorts of breaks to in-state producers that led to Granholm v. Heald, 544 U.S. 460 (2005). I haven't the time to write too deeply about it now, but I will in the near future.

Friday, January 9, 2009

And we're back...

So finals and a snowbound Christmas vacation ate my life for the last few weeks...but now I'm back and tomorrow will be a major writing and posting day! Topics include:
  • Brew Day: Smoked Porter
  • Charcuterie: Brats, Weisswurst, Andouilles, Tasso, Turducken, Trotter Gear and Headcheese!
  • CSA roundup weeks 4. 5. 6.
  • The End of Zima, and the end of alcopops?
  • Woodinville's new craft distillery: NW Absinthe!
  • Washington's new craft distiller license: have they just recreated Bacchus?
  • Maybe more...
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The Twentyfirst Amendment Meets the 21st Century by Russell Hews Everett is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. The opinions expressed on this page are purely my own, and should not be taken to constitute legal representation or advice.