the label of Bad Frog Beer – which featured an amphibian displaying its extended middle finger on the grounds that the label was obscene.
A 2012 Western District of Michigan decision holding that Michigan could not refuse to approve the label of Flying Dog Brewery’s Raging Bitch IPA on the grounds that the label allegedly promoted sexism and was “detrimental to the health, safety, or welfare of the public.”
A 2001 District of Colorado decision holding that Colorado could not require Flying Dog Brewery remove the phrase, “Good Beer, No Shit” from the label of its Road Dog Ale.
As the forgoing list of decisions illustrates, the First Amendment already presents a formidable obstacle to government attempts to suppress truthful, non-misleading commercial speech, including speech certain government regulators deemed disparaging, obscene or indecent. The Tam decision adds an additional precedent to these First Amendment principles, highlighting that distillers have substantial protections for messages deemed inappropriate by certain governmental bodies. Of course, vindicating First Amendment rights requires lawyers, time, and (because lawyers generally want to be paid) money. Because of this, in spite of Tam and other precedents, regulators may take actions that seem to violate First Amendment principles unless and until an
industry member DISTILLERS SEEKING TO USE musters the “EDGY” LABELS OR ADVERTISING resources to CAN TAKE SOME SOLACE challenge the action of the government. Still, IN KNOWING THAT IF distillers seeking to use NECESSARY, THE LAW GIVES “edgy” labels or advertising THEM SUBSTANTIAL can take some solace in knowing that if necessary, the PROTECTION. law gives them substantial protection against government suppression of their commercial message.
Marc E. Sorini is a partner in the law firm of McDermott Will & Emery LLP, based in the Firm’s Washington D.C. office. He leads the Firm’s Alcohol Regulatory & Distribution Group, where he concentrates his practice on regulatory and litigation issues faced by supplier-tier industry members. His practice for craft distillers includes distribution agreements, distribution counseling and litigation, beer formulation, labeling, promotional compliance, compliance strategy, and federal and state tax and trade practice enforcement defense. Eleanor (Ellie) Atkins is an associate in the law firm of McDermott Will & Emery LLP, based in the Firm’s Washington D.C. office. She works in the Intellectual Property Prosecution Group, where her practice for alcohol beverage companies focuses on trademark law.
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Published on Sep 19, 2017