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.
Creative Commons License
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.