Misadventures in Labeling
American Flags, Bare-Breasted Women, Red-Nosed Reindeer and Other Things You May Not Slap on a Beer Bottle
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.
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.”
Say What? Say Who? Say Why?
Once you’ve dotted all “i’s” and crossed all “t’s” to the governments’ (federal and state) satisfaction, you can still get worked over in the court of public opinion. Sometimes, the most innocuous labels can generate the most controversy. In 2009, Gene Muller, president of Flying Fish Brewing Co. in Cherry Hill, NJ, began releasing his “Exit” series of experimental, one-off beers in 750-ml bottles. As Muller explained, New Jersey lacks geographic features like towering mountain ranges or mighty rivers, so residents size up one another by asking, “What exit are you from?”
The series, however, hit a speed bump when both the New Jersey Turnpike Authority and Mothers Against Drunk Driving registered their protests. “The combination of a roadway and advertising for any kind of beer doesn’t make any kind of sense,” charged Mindy Lazar, executive director of New Jersey’s chapter of MADD. “This is almost a mockery.”
Muller was taken aback. “Did MADD feel that kids were going to buy the beer and party at the exits? What kid is going to buy a $10 bottle of beer?” Nevertheless, he placated his critics by posting the disclaimer on his website: “The New Jersey Turnpike Authority has no affiliation with the Exit Series. Both the Turnpike Authority and Flying Fish agree that you should never drink and drive.”
Sex sells products, but it can also get you covered up. In 2007, a Reading, PA, microbrewery called Legacy Brewing Co. began marketing a product called Hedonism Ale, which it claimed was “brewed with an orgy of ingredients.” The label showed an assortment of cartoon characters engaging in public displays of affection (nothing beyond kissing and hugging, really). However, one Lancaster distributor called Beer Ink viewed the brand as pornographic and began wrapping cases in plain brown paper.
Poking fun at someone’s religion is another way to inflame public opinion. About 2005, Lost Coast Brewery in Eureka, CA, introduced a product called Indica IPA. On the label was an elephant-headed Hindu deity called Ganesha, shown grasping a beer with his trunk and one of his four arms.
Ganesha is worshipped by millions of Hindus, Buddhists and Jains who revere him as the remover of obstacles and a patron of the arts and sciences. Many were offended enough to complain to the brewery and organize boycotts. Some emailed bomb threats. One angry Hindu even filed a lawsuit, calling the label “a hate crime.” Brij Dhir, identified in the press as a Golden Gate University law student and licensed attorney in India, said $1 billion in damages would be an appropriate sum to compensate Hindus around the world for their emotional distress.
Lost Coast subsequently redesigned the label, removing several of the elephant’s limbs to make him appear more nonsectarian. But to this day the controversy remains a sore point with the brewery. Lost Coast doesn’t even mention Indica IPA on its website. “This way we feel like we’re not rubbing salt in anyone’s wounds,” says sales director Briar Bush. “We’re not trying to profit off of anyone’s religious preference.”
On the other hand, Greg Schirf of Wasatch Beers in Salt Lake City was actively courting controversy when he premiered his Polygamy Porter (slogan: “Why have just one?”) in 2001. Schirf brews in a state whose population is more than two-thirds Mormon. More properly called the Church of Jesus Christ of Latter-day Saints, the religion outlawed its controversial practice of plural marriage in 1890 and has since tried to integrate itself into the American mainstream. However, some breakaway sects still allow men to take multiple wives.
We’re not making fun of anyone’s religion, just saying this is a part of Utah’s heritage,” insisted Schirf in an interview several years ago. Not long after the brand’s introduction, however, Utah raised its state beer tax—already the highest in the nation—another $1.88 to $12.88 a barrel. That act of retaliation continues to cost Schirf around $50,000 extra per year. On the plus side, he’s made a small fortune in T-shirt sales, raking in $100,000 in the first three months after the wire services picked up on Polygamy Porter.
In 2005 Schirf made headlines once again, this time with an amber beer called Evolution Amber Ale. A “Darwin Approved” seal specifies that the beer was “Created in 27 days, not 7.” The brand, Schirf explained, was inspired by a Utah state senator who tried to pressure state schools into teaching intelligent design theory as an alternative to Darwin’s theories.
It might appear to be risky policy to tweak the powers-that-be, but as Schirf once explained, Mormons don’t drink alcohol, and “you can’t lose a customer you’ll never have.”
Do the Right Thing
Even if a label resonates well with the public, however, corporate America might have a bone to pick with you. With an estimated 13,000 beer brands on the market today, it’s inevitable that cases of trademark infringement will arise.
Sometimes breweries ought to know better. Back in the late 1980s, one faltering Midwestern regional tried to revive its fortunes with a brand called Korr’s Original Steam Beer. The only reason Fritz Maytag (who zealously defends his trademark Anchor Steam) didn’t voice his objection is that another larger brewery, by the name of Coors, pounced first.
That brewery is long defunct. Getting sued by two different people is never a good business strategy.
Usually, however, trademark infringement is inadvertent. And sometimes it can be settled amicably, without resorting to lawyers at 10 paces. In 2001, Adam Avery of Avery Brewing Co. in Boulder, CO, and Vinnie Cilurzo of Russian River Brewing Co. in Santa Rosa, CA, realized that both of them were making a strong, Belgian-inspired ale named Salvation. There was, however, no overlap in marketing territory (at that time anyway), and “we realized that neither of us had any issue with it,” says Avery.
In fact, the two brewers decided to create a new brew by blending their respective beers. During an evening of much convivial elbow-bending at the Russian River brewpub, Natalie, Vinnie’s wife, came up with the name Collaboration Not Litigation. The two beers that share the name Salvation—Avery’s is a hoppy, golden ale, Cilurzo’s is darker, more of a dubbel—”blend extraordinarily well,” says Avery. “They create a completely different beer.”
Batch No. 4 of Collaboration Not Litigation was bottled at Avery’s brewery and released this past winter. The two brewers continue to brew their own versions of Salvation and remain fast friends.
In such trademark disputes, the party claiming injury isn’t always another brewery. Bethlehem Brew Works, a brewpub in Bethlehem, PA, used to brew a strong, spiced ale called Rudolph’s Reserve for the Christmas holidays, bottling a small amount. The label depicted Santa Claus saddling up the famous red-nosed reindeer popularized in the 1949 Gene Autry song. Just before the holiday season in 2003, Bethlehem Brew Works received a cease-and-desist letter from a Wilton, CT-based firm called The Rudolph Co. L.P. and its merchandising agent, Gt Merchandising and Licensing L.L.C. The company claimed a trademark to “any design of a reindeer with a shiny nose and the design of a red-tipped nose on any fanciful deer-like animal.”
Jeff Fegley, the brewpub’s owner, changed the color of the reindeer’s nose from a bright red to dull black and tweaked the name ever so slightly to Rude Elf’s Reserve. The 2009 version of the beer won a bronze medal in the Herb and Spice or Chocolate Beer category at the most recent Great American Beer Festival.
Some trademark disputes can reach almost absurd levels. You wouldn’t think that you could trademark an animal, would you? But Bjorn Nabozney, co-founder of Big Sky Brewing Co. in Missoula, MT, fought a 10-year battle with the Canadian brewer of Moosehead that began when Big Sky attempted to trademark its flagship beer, a brown ale named Moose Drool. Attorneys for Moosehead claimed that the brand was creating “confusion” in the marketplace.
We were spending thousands of dollars a month; we had a team of five lawyers,” says Nabozney, who decided to settle three years ago. Under the terms of the agreement, Big Sky agreed to limit sales of Moose Drool largely to states west of the Mississippi.
You would think that the average consumer could tell the difference between a beer and a women’s fashion magazine. Yet the publishers of Elle, recalls Adam Avery, brought legal action over a brand called Elle’s Brown Ale, named after the brewer’s late Labrador retriever. Avery resolved the dispute by adding an “i” to make Elle “Ellie.”
We were in the right,” says Avery, “but I didn’t want to spend time in court. Some people might say, ‘I’m going to fight tooth and nail,’ but not me. The problem with trademarks is that you’ve got to spend a lot money to keep them.”
Matt Nadeau, president of Rock Art Brewery in Morrisville, VT, decided enough is enough when Hansen Beverage Co., a large soft drink firm based in California, threatened to sue over one of Rock Art’s brands, an American-style barley wine called the Vermonster. Hansen claimed that the beer brand would “create a likelihood of confusion” and “dilute the distinctive quality” of Monster Energy Drink, one of Hansen’s major labels.
Nadeau found the claim totally worthless. His research revealed that there were already 25 alcoholic beverages registered with the TTB that included the word “monster” in their names. Among them was Brooklyn Brewery’s The Monster barley wine, which preceded the energy drink. “They never had a problem with that.” Nadeau believes that large companies, in monopolizing trademarks, often start by bullying the littlest guys first so they can build up a folder full of “precedents” that they can present to a court.
Rather than give in or let himself become bankrupted by attorneys’ fees, Nadeau sent out a plea for support over the Internet. A local paper, the Stowe Reporter, picked up on the David vs. Goliath angle of the story, and soon media across the country, from the Boston Globe to the Associated Press, were following suit. “We got over a million tweets within days,” says Nadeau.
A big swell of negative publicity for Hansen built up,” he relates. He got emails from stores as far as away as Long Island―”stores we didn’t even distribute to”―saying they were pulling Monster Energy Drink from their shelves in protest. Eventually, Hansen was forced to back down. The corporation agreed not to challenge Rock Art’s trademark as long as the microbrewery agreed not to get in the energy drinks business. That was a compromise Nadeau had proposed at the beginning of the dispute, but which Hansen had initially rejected.
A Small Victory
It’s not over yet. In the aftermath of the controversy, Vermont Sen. Patrick Leahy, chairman of the U.S. Senate Judiciary Committee, introduced a bill (S. 2968) calling for a review of current trademark law and the litigation tactics used by large firms to exploit the system.
We saw a high-profile case… in Vermont last year involving a spurious claim against Rock Art Brewery,” wrote Leahy in a press release. “When a corporation exaggerates the scope of its rights far beyond a reasonable interpretation in an attempt to bully a small business out of the market, that is wrong.”
The bill should be law by the time you read this. What will come out of the study can’t be predicted, but as Nadeau boasts, “Vermonster was saved by the people.”