Indefinite Hiatus

Well, given that it's been a year since this was last updated clearly I don't have the time I used to devote to it. So the blog is going on indefinite hiatus.

I still update my personal blog, though not as often either.

LCB Approves Spokane AIA

Acronym Acronym? Acronym. What this translates to is yesterday, the WA Liquor Control Board approved a Mandatory Alcohol Impact Area for downtown Spokane. This makes it the third area in the state where certain kinds of low-cost, high-octane beer and wine are prohibited from sale for off-premises consumption.

This makes Spokane the third city to ask for a mandatory AIA; Tacoma has one and Seattle has two: the Downtown Core and the U-District. As you can clearly see, AIAs have proven effective in decreasing public drunkenness there. Just not at stopping fires in the middle of the U-District's streets, which is a time honored tradition.

AIAs start out as a "voluntary' process, in which the City outlines an area, identifies the sellers authorized for off-premises consumption, and works with them to voluntarily restrict sales of targeted products. If this is unsuccessful, the City can ask the LCB to declare a 'mandatory' AIA, forcing those licensees to stop sales of requested brands.

What I do find interesting is that the restricted wines and beers are listed by actual brand name, rather than by common characteristics. So for example, this allows Elysian Brewing's Elysian Fields Brewery (on the Southern edge of the Downtown Core AIA) to sell their (excellent) AK-47 Malt Liquor in growlers, while a liquor store in Pioneer Square can't sell Colt-45 or Old English. This targeted crackdown on specific brands is no doubt valid under the old Young's Market 'power to ban outright = power to do anything less' reasoning, the staple of Liquor Control Board authority across the country. But I do wonder how the targeting of individual brands would stand up under more recent jurisprudence.

Washington LCB Changes Advertising Rules

Yesterday the LCB issued a ruling changing some of Washington's rules regarding advertising of alcohol and industry companies. Most of the changes define and update the current rules, but a few are worth noting.

Probably most important are new restrictions on outdoor advertising, under WAC 314-52.-070. The section was amended:

to restrict the number of signs advertising alcohol, brand names, and/or manufacturers that are visible from the public right of way on the outside of a retail premises to a total of four. The size of the signs is limited to 1600 square inches. Amended language to restrict outdoor advertising within 500 feet of places of worship, schools, public playgrounds, or athletic fields used primarily by children.

So no more than 4 signs visible from a roadway, no bigger than 40"x40", and restricted away from youth areas. Presumably this would also impact neon signs, so for example bars with more than four neon signs in their windows might have to remove some.

Also of note was a lot of rulemaking regarding 'money or money's worth' given by industry members to fundraisers and events, and several rules were updated. The LCB also created a new rule:

New Section – WAC 314-52-120 – Sponsorship of public and civic events.
Created a rule to address sponsorship of public and civic events by industry members. Industry members may provide the following:

• Signage with the industry members name or brand name of their products; and
• Programs or flyers to be disseminated at the event.

Acknowledgement of the industry member is allowed in any media advertisement where the function recognizes the sponsors of the event. The size of the alcohol industry member sponsor acknowledgement may not exceed the size of the event name.
Inflatables are not allowed inside the event area.
There may be no giveaways of alcohol promotional items of any kind to persons under 21 years of age.

Many of the comments to the rulemaking were from non-profits and foundations expressing concern over the new rules. The fear is that the more complicated money's worth rules will make sponsorship impossible, or at least unattractive.

The LCB Explanatory Statement can be found here (.pdf).

The new rules will go into effect on April 4th.

The Chemist's War

Great article up on Slate, The Chemist's War: The little-told story of how the U.S. government poisoned alcohol during Prohibition with deadly consequences.

During Prohibition people were using industrial grade alcohol to make mixed drinks. Problem was, in order to be 'tax free' industrial alcohol by law had to be (and continues to be) "denatured". Which, as we know, is a polite euphemism for 'Poisoned."

But those plucky mobsters in their big hats paid chemists a fortune to 're-nature' tens of thousands of gallons of stolen industrial hooch. So the government steadily increased the toxicity of the chemicals used to denature the spirits. Which meant the mob chemist-treated bootleg alcohol was of increasingly varying quality and safety.

Estimates are that nearly 10,000 people died during Prohibition from drinking government poisoned alcohol.

What's most interesting is the sort of "they brought it on themselves" mentality that Congress took, even while people were dying in the hundreds every holiday season.

WA on the way to approving tastings at grocery stores.

WA House Bill 2688 passed a couple days ago, and it now goes to the Senate for approval. The bill writes last year's tasting pilot program into law, and in brief:

• Allows grocery stores (defined as at least 9,000 square feet, with groceries constituting at least 50% of their business) to purchase a $200 endorsement allowing them to conduct tastings of beer and wine in-store so long as they have had no more than one public safety violation in the last two years.
• There must be a suitable area that minors and already intoxicated persons can be screened from.
• Service is limited to two, 2-ounce tastes per person. Food must also be made available. Customers must remain in the service area while drinking.
  
• Servers of the licensee must have the mandatory MAST training and permits.
• There are several tied-house provisions. For example, advertising is restricted and must be conducted and paid for by the store itself. The store must pay for the samples itself, they may not be donated by the brewer or winery.
• However, exceptions to the tied house provisions allow wineries and breweries to conduct the actual tastings themselves, including bottle signing, talks, etc.. However, participation of the brewers/vintners may not be required by the store.
• The bill provides for a variety of punishments for violations, including suspension and/or revocation of the endorsement, and up to a $500 fine.
• It also allows the LCB the right to refuse endorsements or place restrictions in Alcohol Impact Areas (AIAs), where chronic inebriation is a recognized problem.

The Senate Bill is SB 6329.

Iowa Judge: Jello Shots are a Beverage

News from Iowa City where an ALJ has ruled:

"There is no evidence in the record to support the licensee's argument that -- simply because vodka was mixed with Jell-O mix -- it lost its character as an alcoholic beverage," Lockard wrote. "While there might be some debate in another context as to whether Jell-O is a food item or beverage, in this context ... the Jell-O shots served by the licensee were alcoholic beverages."

Apparently the bar was fined $500 for Service to Minors involving a Jello Shot, in response to which it argued that Jello Shots are not technically an alcoholic beverage, as the gelatin is, well, a gel, not a liquid. Nice try anyway.

South Butt vs. North Face

This doesn't really have anything to do with alcohol per se, though I suspect some may have been involved in the drafting of this answer. The clothing company North Face is suing South Butt, LLC, for trademark infringement. South Butt has responded by arguing a 1st Amendment parody defense. Their Answer to the North Face Complaint is hilarious, and well worth reading even if you're not a lawyer.

The South Butt Answer to the North Face

My favorite parts:

• Describing the defendant as a "cherubic teenager" who "may have turned 19 years of age, while he looks 14, and to some, acts 12".
  
• "the consuming public is well aware of the difference between a face and a butt"
• "Despite [the company's adventurous image] Plaintiff's products are perceived as being consumed by those who have little to no interest in living an adventurous lifestyle, but, rather, are interested in acquiring Plaintiff's products for the status and/or notoriety they receive from being seen in Plaintiff's expensive apparel and accessories." ... "Defendants recognized this bizarre phenomenon."
  

Alcopop Taste Test

Humorous rundown of a few hideous alcopop brands from Zug.com

My favorite quote: "It smells like Sesame Street the morning after the cast discover binge drinking and projectile vomit."

Also this great image:

Union Strike Hits InBev in Belgium

The strike that has been in progress for over a week now is rapidly depleting supplies of Leffe, Hoegarden and Stella Artois in Belgium.

At the heart is AB-InBev's plan to lay off hundreds of workers, about 10% of their Belgian workforce, despite posting global profits of $1.5 billion in the last quarter. It's a conflict of a small group of workers representing some very iconic Belgian beers, who are nonetheless part of a global conglomerate now representing over 200 brands. What may be good for the parent corporation and the stockholders may not be good for the little guys.

Meanwhile the global consolidation of breweries continues.

History of Bellingham Brewing

Fun article in the Bellingham Business Journal concerning the history of brewing in the city. Like many frontier cities Bellingham historically had several breweries, all of which were killed off by Prohibition. Now it has two: Boundary Bay and Chuckanut. But what two to have! Boundary Bay has won a slew of awards and makes a great IPA. It is also quite large and is a venue for local music.

Chuckanut is only a bit over two years old but took two golds and two silvers at the GABF last year, making it Small Brewpub of the Year. No surprise here, the brewmaster is Will Kemper, erstwhile of Thomas Kemper Brewing and Sodas (bought by Pyramid Brewing in 90's, sold in 2007 to Adventure Funds in Portland) as well as a dozen more breweries that he helped get up and running.

Global Consolidation of Breweries Continues

Heineken is buying Mexico's Femsa for $5.5 billion in stock. I believe Femsa is the second largest brewing conglomerate in Mexico, after Groupo Modelo. This means that Heineken now also controls Dos Equis, Sol and Tecate in the U.S. as well as Xingu in the U.S. and Brazil. This comes on the heels of Heineken's purchase of Newcastle last year, and is further representative of continued consolidation and struggle between the three largest conglomerates, Anheuser-Busch InBev SA, Heineken and SAB-Miller for market share in the developing markets of Central and South America.

"In the context of the reconfiguration of the global brewing landscape, scale and geographic diversification are more important than ever," said Femsa CEO Jose Antonio Fernandez Carbajal.

Widmer loses 62,000 pints of beer

Ouch. Due to a power outage in Portland, OR, yesterday, Widmer Brothers lost an entire batch of their new, most expensive, and as yet unreleased Deadlift Imperial IPA. That's 7,750 gallons or around 62,000 pints down the drain.

Fortunately it will be donated to local farmers who will use it as animal feed and fertilizer. The article doesn't mention exactly why the beer couldn't be saved. My guess, since it is going out to animals, is that it was somewhere in the mash or sparge process when the power went out. While it would be hilarious to see a farm full of pigs hopped up on a 9.5% ABV double IPA, I'm guessing they're sending out the unfermented wort and/or mashed grain. Had it been in the fermenting tanks, that volume of beer, in a Portland winter, probably would have held temperature more or less had the glycol chillers cut out, and the beer would be just fine.

I'm sure the batch was probably insured as well.

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.

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.

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.

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.

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.

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?"

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...