EDGAR, GOOD NEWS: Court says Texas rules defining beer violated First Amendment

Edgar B. should be so happy about this international news. BBB

Court says Texas rules defining beer violate First Amendment
Dec. 21, 2011
By Terry Evans - Star-telegram

Texas brewers can finally call a beer a beer.

They can call an ale an ale.

They can also tell folks where to find their beers and their ales, as well as their malt liquors.

Ruling in favor of plaintiffs who asserted that some Texas Alcoholic Beverage Commission rules were unconstitutional, U.S. District Judge Sam Sparks said the state was effectively forcing brewers to lie about their products.

The commission said it won't appeal the ruling.

The plaintiffs, Authentic Beverages, Jester King Craft Brewery and Zax Restaurant & Bar, argued in an Austin courtroom that the word beer encompasses all malt beverages, while ale means a style of beer that is made with a certain kind of yeast through warm fermentation.

However, commission rules demanded that any malt beverage with less than 4 percent alcohol by weight be called beer. Anything containing more than 4 percent alcohol must be called an ale or malt liquor.

The judge said Texas can't force an industry to mislabel a product just to satisfy the state's conception of that product.

"For instance, Texas would likely face no (legal) obstacle if it wished to pass a law defining the word 'milk' to mean 'a nocturnal flying mammal that eats insects and employs echolocation.'" Sparks wrote. "Under TABC's logic, Texas would then be authorized not only to prohibit use of the word 'milk' by producers of a certain liquid dairy product, but also to require Austin promoters to advertise the famous annual 'Milk Festival' on the Congress Avenue bridge. Regardless of one's feelings about milk or bats, this result is inconsistent with the guarantees of the First Amendment."

Rachel Fisher, a legal assistant with James O. Houchins, the Austin law firm that represented the plaintiffs, said the ruling affects "all consumers who want to be accurately informed on what they're purchasing."

Owner Ron Extract used a Jester King product named Le Petit Prince as an example.

"It's a low-alcohol beer that's top-fermenting, so it's technically an ale," he said. "It's 2.8 percent by volume, or 2.2 percent by weight. Under the previous law, we couldn't use the term ale for that product. Now we have the option of using the word ale, which we probably will."

But Extract said the most important thing about the ruling isn't about beer.

"It's about free and open communications," he said. "It gives consumers access to information they have the right to have."

Sparks' ruling was welcome news to Ben E. Keith Co. The commission rule also prohibited breweries and distributors from telling customers where their products can be bought.

David Greenlee, general counsel for Ben E. Keith, said the distributor of Budweiser and several imported and craft beers will probably "restore access to what we call the beer finder, where consumers can find out where the products we handle are sold."

Greenlee said the company discontinued that service on its website some time ago, after having a talk with the state commission.

"It was well-liked when we had it available," he said. "We kind of turned it off with some regret."

Spokeswoman Carolyn Beck said the commission "is pleased to have some direction from the court on these very complicated issues. The agency is putting together a marketing practices bulletin to go out within the next two weeks in order to tell the industry how we will operate until public comment rulemaking can be done. We anticipate the rulemaking will take at least 90 days."