Getting a beer label to market is an intricate dance fraught with more missteps than the brewing of the beer itself. At the very least, it means navigating a gauntlet of federal and state regulations that can be confusing, contradictory and vague. At worst, it can entail defending your label against a charge of trademark infringement brought by a large mega-corporation (not necessarily even a beer company), and deflecting criticism—sometimes even bomb threats—if you’ve stepped on someone’s toes.
You’d think that it would be safe to display the American flag on your label.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) is the federal agency that regulates alcoholic beverage labeling. Title 27 of the Code of Federal Regulations spells out, in sometimes nitpicking detail, what you may print on a beer label, what you may not print and what you must print (and in what typeface, print size and color).
The Devil is in the Details
Uncle Sam frowns on even the slightest deviations. Epic Ales, a microbrewery in Seattle, WA, had a label disallowed because the mandatory warning statement (the one about alcohol impairing your ability to drive or operate heavy machinery) lacked a period.
In grammar school, a mispunctuated sentence might get you a rap on the knuckles from your teacher. But for a recent start-up trying to get its products on the market, far worse is a delay of weeks (or months) until a revised label can be submitted.
There are certain statements that the TTB clearly and unequivocally forbids. You can’t say that beer has any health benefits. Stating that your beer contains vitamins or minerals (even if backed up by laboratory analysis) is considered a de facto health claim and not allowed. (But the TTB will permit you to list the protein, carbohydrate and fat content.)
Terms that bespeak of high alcohol content, like “strong” or “high test,” are also verboten. The original label for Tuppers’ Hop Pocket Ale was disallowed because it contained the phrase “powerfully hopped.” Apparently, the feds neither knew nor cared that hops have no influence on the alcoholic content of a beer.
What vexes brewers, however, are arbitrary decisions over matters not mentioned in the regs. “They don’t always set out their expectations in clear terms,” says Cody Morris, brewer/manager of Epic Ales, which in its brief lifetime (construction began in December 2008) has already accumulated a stack of rejections. His label for Terra-saurus was shot down because of the description “a meaty ale.” Notes Morris: “They rejected it because they thought ‘meaty’ implied I put meat in my beers.” (His Terra-saurus does contain one unusual ingredient—shiitake mushrooms—but no meat.) Morris changed “meaty” to “toothy” and the TTB nixed that adjective as well as a “non-accepted term.”
A second label, for a spiced ale called Solar Trans-amplifier, was rejected because of the phrase “an invigorating ale.” The TTB gave the thumbs down on a third label, for a coffee and cardamom-flavored brew called OTTO-Optimizer, because the label described it as “swarthy.”
Finally, a frustrated Morris submitted paperwork for a product called Simple Ale, whose label is printed in a generic black and white with simple block lettering and no extraneous designs. That one sailed through.
The whole thing makes you want to crawl up in a fetal position on a sack of malt,” sighs Morris.
Mind Your Design
The TTB’s labeling code also specifies what designs you can and can’t display on the label. Anything obscene is forbidden. You’re also not allowed to print a crest, coat-of-arms or insignia if it might falsely imply an endorsement from an individual or group using that symbol.
Brian Owens, brewer for O’Fallon Brewery in O’Fallon, MO, recently had a label for his Hemp Hop Rye beer rejected because it had a picture of a spiky-leaved hemp plant. “They said you can’t advertise a controlled substance,” he says of the TTB’s response. Although it’s legal to import sterilized hempseed (as long as contains no more than traces of the psychoactive chemical THC), you can’t grow hemp in any form. “Oddly enough, we had to take the picture of the healthiest ingredient off the label,” commented Owens.
You’d think that it would be safe to display the American flag on your label.
And you’d be wrong.
In the early 1990s, Jack Joyce of Rogue Ales in Newport, OR, submitted his American Amber Ale for label approval. The government rejected the label, which showed an Uncle Sam-like figure hoisting a beer with the American flag fluttering in the background. Rogue, it seems, had run afoul of U.S. Code Title 4, Chapter 8, Item 1: “The U.S. flag should never be used for advertising purposes in any manner whatsoever.” So Joyce redesigned the label to portray a generic pattern of red and white stripes with a single row of stars as a border.
However, he continued to use the flag design for glasses, T-shirts, tap handles, etc. until 2005, when a TTB agent, vacationing in Oregon, spotted a Rogue truck painted with the original logo. Ordered to cease and desist, Joyce repainted his trucks and destroyed or gave away between $15,000 and $25,000 worth of promotional items. He was able to salvage his tap handles by painting out the stars. “We solved that by basically desecrating the flag,” he observed ironically.
The prohibition against the flag’s use in ads is meant to keep consumers from thinking that the government endorses products. At least, that’s what the U.S. Department of the Treasury said at the time of the controversy. But the national code for displaying the flag, in effect since 1923, cites another reason for not depicting the Stars and Stripes on a beer label: The flag’s image should never be used on items that are customarily used once and tossed into the garbage, like napkins or candy wrappers. Trashing even a picture of the flag is considered an insult to Old Glory. Technically, postage stamps that portray the flag are also a violation.
But even though the United States Postal Service gets a free pass, Joyce declined to protest the TTB’s decision. “Ours is not to reason why, ours is to comply,” he says, noting gratefully that the government did not exercise its option to fine him $70 for every item that violated the code.
Just because the TTB grants you its approval, that doesn’t mean you’re cleared to sell your beer from coast to coast. “We’ve had more trouble with the states than with the federal government,” grouses Dan Shelton of Shelton Brothers importers in Belchertown, MA. One of the Shelton’s celebrated tussles involved Les Sans Culottes, a bière de garde from the French brewery Les Choulette. The label features a scene from the Eugène Delacroix painting Liberty Leading the People, which commemorates the July 1830 revolution that overthrew King Charles X of France. In the center of the painting is a bare-breasted representation of Miss Liberty holding aloft the French tri-colored flag. Although the original hangs in the Louvre and Miss Liberty’s pose is suppose to have inspired our Statue of Liberty, Maine was one of several states to ban the label, alleging that it contained “an undignified or improper illustration.”
Maine also refused to approve another Shelton product: Santa’s Butt Winter Porter, one of a series of irreverent yuletide beers from the Ridgeway Brewing in Oxfordshire, England. The label portrays Santa squatting on an immense barrel of beer, holding his nice-and-naughty list in his left hand and a foaming mug in his right. The name, notes Dan Shelton, is a pun: “butt” can mean one’s posterior or a barrel containing 108 gallons. “That was the one that caused the real stir,” Shelton says. Maine authorities objected because the image of Santa might appeal to children. “We said that made no sense. A 5- or 6-year-old is not going to be able to purchase a bottle of beer.”
Maine eventually backed down after Shelton, a graduate of Yale Law School, filed a suit with the help of the Maine Civil Liberties Union, attracting national media attention. “We got a lot of hostile mail from people all over the place saying we were going to rot in hell for doing that to Santa Claus,” he says.
However, he adds, “There is such a thing as freedom of commercial speech. We do have rights under the First Amendment.”