While local liquor boards try to make the case that bureaucrats can do a better job than private businesses when it comes to managing the sale of alcoholic beverages, some small-minded censors at the North Carolina ABC Commission are spoiling for a First Amendment fight over irreverent craft beer names.
Wilmington television station WECT Channel 6 reported this week that the state booze board has blacklisted about 230 beer and wine labels since 2002, meaning those products cannot lawfully be sold in the Tar Heel State. One recent rejection’s made headlines — Utah-based Wasatch Brewery’s Polygamy Porter.
In a denial letter, some humorless pencil-pusher at the ABC commission reportedly wrote that the beer couldn’t be sold under that name because polygamy is illegal. That makes about as much sense as banning McDonald’s because its Hamburglar mascot promotes theft.
Another rejected beer label, Kissing Cousins, is particularly tough to justify. As News & Observer reporter Andy Specht pointed out on Twitter, North Carolina allows first cousins to marry. You can attend a cousins’ wedding in our state, but you can’t toast the newlyweds with an aptly named brew.
Products named Wine for the Super Hero, Daddy Needs His Juice and Beergasm also fell victim to the censorship hit squad, according to WECT.
State law bans the sale of alcoholic beverages whose labels are “undignified, immodest or in bad taste.” These terms are highly subjective and lack precise legal definitions. They’re also out of step with federal case law on alcohol marketing.
In March 2015, the 2nd U.S. Circuit Court of Appeals overturned a lower court ruling that sought to uphold the Michigan Liquor Control Commission’s ban of Flying Dog Brewery’s Raging Bitch IPA. A federal district court sided with Flying Dog this year, allowing the Belgian-style India pale ale — whose label depicted a snarling dog — to be sold in Michigan.
Two Supreme Court rulings also stack up in the brewers’ favor. In 2017, justices unanimously struck down a federal law prohibiting the registration of disparaging trademarks, allowing Asian American musician Simon Tam to obtain trademark protection for his band, The Slants. While the name makes use of a racial slur, Tam asserted his right to reclaim it for a positive purpose.
Building on that precedent, a 6-3 high court majority in June threw out a federal law barring “immoral” or “scandalous” trademarks, clearing the way for a clothing designer to register his vulgar-sounding skatewear brand whose name is an acronym for “Friends U Can’t Trust.”
North Carolina’s nebulous labeling restrictions don’t have a prayer of passing legal muster. They violate breweries’ First Amendment right to free speech. And they interfere with consumer choice, which serves as a real-time referendum on commercial products.
“The market should decide,” Flying Dog CEO Jim Caruso told the blog Brightest Young Things in 2017. “If they don’t like our beer or our names, they can choose not to buy it.”
The hullabaloo over beer labels follows a push to privatize liquor sales led by state Rep. Chuck McGrady, R-Henderson. A bipartisan coalition of state lawmakers thinks it’s time to end North Carolina’s Prohibition-era policies. Liquor would be treated more like beer and wine, with supermarkets and freestanding stores able to sell the beverages and set their own hours.
Restrictionists are a formidable lobby, however. The state commission and local ABC boards have wailed loud and long against the supposed evils of private sales. The ABC system is rife with political patronage, and after forming an alliance with public health advocates who fear expanded access to liquor will cause societal harms, it appears local booze boards will be able to hold onto their fiefdoms for a little while longer. But their tenuous grasp on a state-sanctioned monopoly is slipping.
Negative publicity for banning beer and wine names is the last thing this byzantine bureaucracy needs right now. Requesting an advisory opinion from the state attorney general allowing it to set aside North Carolina’s unconstitutional product labeling rules would be a wise move.
As long as we have an ABC system, let the “C” stand for control — not censorship.
