North Carolina Sued By Flying Dog Brewery Over Regulatory Body Refusing To Allow Sales Due To 'Offensive' Label
from the it's-just-a-penis,-guys dept
Normally, when we talk about beer in these pages, we’re typically talking trademark infringement issues. Because of the creative way those in the exploding craft brewing industry have gone about naming their brews and designing their labels, far too often this results in disputes between parties over what is too similar to what, or who’s design is too close to another’s. While this specific story doesn’t involve trademark law or disputes, it does still exist due to the creative practice of labeling.
Flying Dog is a well known name in the craft beer industry. Not huge, but certainly not small, Flying Dog’s labels have a certain aesthetic motif in the artwork that is easily recognizable. As part of the process for using those labels on cans and bottles of beer, the brewery has to gain a certificate of label approval from the ATF. It also then has to gain the approval for labels from individual state agencies as well. For its forthcoming “Freezin’ Season” ale, Flying Dog was able to get the afore-mentioned approvals at both the federal and state levels in every case, except for North Carolina. There, the North Carolina Alcohol Beverage Control Board (ABC) denied approving the label, thereby disallowing Flying Dog to sell bottles within the state entirely. Why? Well…
Still having trouble figuring out what the problem is? Well, it’s that little protrusion from between the outlined figure’s legs. Is it a penis? Gasp! Maybe! Flying Dog hints that it’s actually a little tail nubbin, but I’m not sure I believe them. Nor does that really matter, actually, since this beer label is absolutely constitutionally protected speech and the ABC’s refusal to permit its sale in commerce not only serves as a violation of Flying Dog’s speech rights, but also is prior restraint.
The offending label—like all Flying Dog beers—contains a distinctive cartoon image by illustrator Ralph Steadman, whose work with the Maryland-based brewery dates back to its roots in the gonzo-lands near Aspen, Colorado. It’s not clear exactly what the state’s regulators object to—though the naked, humanoid figure on the beer’s label does sport a small appendage between its legs. Caruso says he suspects that “tail-like thing” is what triggered the ban.
“The regulation is, on its face, in constitutional ‘bad taste,’ as it is in clear violation of the First Amendment,” attorneys for Flying Dog, including veteran First Amendment lawyers Greg Doucette and Marc Randazza, argue in court documents. They say banning the beer label is an unconstitutional viewpoint-based restriction on speech, similar to restrictions that the U.S. Supreme Court has repeatedly struck down.
It’s hard to imagine what the counterargument in court will be, honestly. The puritanical viewpoint of North Carolina’s ABC ought have no bearing on whether or not another entity’s speech rights should be infringed. Given the approval for the label in literally every other state and the federal government, it’s difficult to see how the state could even mount a serious case that there is anything offensive here.
Thine own eyes should have you reaching the same conclusion. Even if we assume that the depiction includes a small, cartoon penis, it’s certainly not pornographic in nature. Nor is it detailed enough to warrant concern amongst anyone at all. It’s just a tiny blip on the artwork of a beer label.
And, yet, it appears this is a regular thing in North Carolina.
This is not the first time that North Carolina’s beer regulators have attempted to censor a product being sold in the state. WECT Channel 6, based in Wilmington, North Carolina, reported in 2019 that the state ABC had blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board’s sensibilities. Among the “inappropriate” products banned from the state are beers with names like “Daddy Needs His Juice,” and “Beergasm.”
Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewing Company that its “Polygamy Porter” could not be sold in the state because “polygamy is illegal.” But the board also banned a beer named “Kissing Cousins” despite the fact that it is literally legal to marry your first cousin in North Carolina.
This is all very, very funny, but it’s also a very real problem for Flying Dog. In its suit (embed below), Flying Dog states that it is currently taking orders on the seasonal beer in preparation for the winter months and it cannot currently sell in North Carolina due to all of this. Given that it also states that bottled beer is 90% of the company’s business, even a single brew being disallowed in a single state means we’re talking about very real money.
This lawsuit should be a fairly easy winner. And, frankly, it appears as though it’s well past time that North Carolina get a lesson in free speech when it comes to beer labels.