Beer Industry Trademark Concerns

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Boston attorney Shannon Sadowski, founder of New Leaf Legal, wrote an engaging piece for the Boston Globe on trademark concerns that craft breweries will be facing as more and more brands emerge in the growing market. These disputes aren’t going to go away, and I’m always amazed by all of the naked ignorance of IP law on display anytime one these disputes rears its ugly head. Before the 24-hour news cycles and the internet, these controversies existed largely in back rooms out of the public eye, where — I believe — they belong. But until I finish building the time machine, “progress” marches on and these disputes are now part of the public brewing world landscape. Any-ha-who, her article, Trouble brewing: fierce competition for beer industry trademarks, is a good overview of the challenges breweries are facing, and even includes a link to Scott Metzger of Freetail Brewing’s wonderful response letter to a trademark dispute. Read it, and be prepared for the next trademark dispute, coming any day now to a brewery near you.

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Homebrewing Finally Legal In All 50 States

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As Mississippi’s ban on homebrewing was lifted today, for the first time since Prohibition made brewing illegal in 1919, homebrewing is finally allowed in all fifty states. My only comment is it’s about damn time. That a supposed clerical error — a typo — made home winemaking legal after prohibition ended while keeping homebrewing illegal is the biggest anti-alcohol bullshit move of all-time, especially when you consider it took a full seventy years to correct that “typo,” at least for all states. The American Homebrewers Association released a statement this morning, as did the Brewers Association:

Unifying the United States homebrew community has long been an aspiration of the American Homebrewers Association (AHA), and we are proud to announce this goal has been achieved with the help of countless dedicated homebrewers and AHA members like you. July 1, 2013 marks the day Mississippi lifts its homebrew restriction, unifying homebrewers in all fifty states for the first time since before prohibition.

Beer history in the United States region predates the very existence of the country as we know it. Native peoples of the Western Hemisphere produced a watery maize-beer, a pre-cursor to modern American adjunct beer, and as the earliest explorers settled down in the New World, America’s contemporary brewing culture was born.

“From our nation’s founders to our current President, this country has a long and storied tradition of homebrewing,” said AHA director Gary Glass.

Even after prohibition was eradicated with the implementation of the 21st Amendment in 1933, homebrewers would still be criminals in the eyes of the federal law for over four-and-a-half decades. President Jimmy Carter signed a bill that went into effect on February 1, 1979 federally legalizing homebrewing, but it remained up to each state to determine their individual alcohol policies, including home beer production. Over the course of the next forty-six years, states adopted legislation, permitting the making of beer at home.

It’s terrific news that finally homebrewing is permitted in every state. It’s been a long time coming.

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Proving Adulthood

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As I inch closer to senior citizenship — gallop really — few things cheese me off more than continually having to prove I’m old enough to buy a drink. It’s been 33 years since I became an adult (36 really, but they changed the definition from 18 to 21 while I was in between the two). Of course, what it means to be an adult is quite the loaded question. The standard responsibilities, obligations and rights include voting, the ability to enter into contracts, marry and several others, including of course, drinking alcohol. The fact that these standards vary from nation to nation, and culture to culture, should convince you that they’re a product of each individual community, and really ought to reflect the values of the populace. And once upon a time, they did, but in my lifetime those values have been hijacked by a minority of fanatics who are committed to forcing their own values on the rest of us.

While the common sense argument that fighting for one’s country should include at least the ability to vote lowered the voting age from 21 to 18, the reverse of that argument was used to raise the drinking age from 18 to 21. People 18 to 20 could be counted on to protect our freedoms — and die for their country — but neo-prohibitionists argued that they weren’t ready to enjoy a beer. A specious argument to be sure, but they managed to tie raising the drinking age to federal highway funds, and no state could afford to remain sensible.

But for anti-alcohol fanatics even that wasn’t enough, it was just a start. And neo-prohibitionists ever since have been working tirelessly to tighten the noose on all manner of restrictions on alcohol. I remember when I was in my early 20s, signs at cash registers warned that if you look 25 or older, be prepared to show your I.D. By the time I was in my 30s, the signs had changed, too, saying roughly the same thing but making 30 the threshold. As I’ve aged, the needle keeps moving. A few years ago, Tennessee passed a law that every person, no matter how old, has to prove they’re at least 21, even if they have one foot in the grave, no exceptions.

People invariably tell me I should be flattered to look so young, and chuckle as they say it, as if I should be amused. Well, I’m not. It has nothing to do with youth. It has to do with control, and having to keep proving I’m an adult is a ridiculous indignity that grows more insulting with each passing year. We live in an increasingly Kafkaesque world where as the older I look, the more I have to prove it. As late as my 40s, I was refused service because I left my wallet at home, despite there being little doubt I was more than twice the age of majority. It’s become the modern equivalent of having to “show us your papers” (say it with a thick German accent), a sad cliche become real. Adulthood has responsibilities and obligations, of course, but it should also have a few benefits, like not having to carry our “papers” with us wherever we go.

But now Somerset, the county in southwest England, has taken this absurdity one step farther. According to a story in the This is Somerset newspaper — a Grandfather, 77, falls foul of shop’s booze rules — an elderly gentlemen was refused his purchase of beer because he was shopping with his teenage grandson. Apparently, the overzealous cashier thought the 77-year old man was buying beer for the teenager, but even after he confirmed they were related, the sale was still refused. He sent his grandson outside, but the cashier still wouldn’t budge. Commenters to the story insist that she was right to refuse the sale because that’s what the law says. And that’s probably correct, but it’s the law that’s wrong. We have to stop trying to make a perfect society through such absurd legislation. When an elderly man can’t shop with his grandchild and buy something he’s legally entitled to purchase because he could potentially turn around and do something illegal with it, that’s going too far. That’s trying to fix a perceived problem by creating a different problem for many more people than were affected by the original problem. But this is the neo-prohibitionist strategy in a nutshell. They want to make it as difficult as possible for as many people as possible. It’s using a bazooka to kill a fly. It’s about punishing everyone who drinks, not about keeping alcohol away from minors.

And so neo-prohibitionists insist that 4/5th of the adult population, or more, has to suffer on the off chance a 16-year old might get his hands on a beer. That’s not what it should mean to be an adult in any society.

State Beer Excise Tax Rates

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Today’s infographic is a map of the State Beer Excise Tax Rates for each of the fifty states as of January 1, 2013. It was created by the Tax Foundation as one of their weekly maps. It’s just the state excise taxes brewers must pay, and doesn’t include either federal excise taxes or any local excise taxes. Tennessee has the highest state excise taxes and Wyoming has the lowest, a fact that the anti-alcohol folks like to exploit and whine about as often as they can whenever these maps show up online, never discussing context or the total taxes each state brewer pays. Not surprisingly, since oftentimes these are also referred to as sin taxes, six out of the highest ten states are in the south, with Florida at #11 and Mississippi at #13. California’s near the middle.

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Click here to see the map full size.

Alabama Passes Homebrew Legislation

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This is great news, Alabama may soon become the last state to legalize homebrewing since Prohibition, thanks in large part to the grassroots efforts of Right to Brew. According to the American Homebrewers Association:

The Alabama legislature has passed a bill that, once signed by Governor Robert J. Bentley, will effectively legalize homebrewing throughout the state. Alabama will be the last state in the nation to legalize homebrewing.

“Homebrewing has been an integral part of the history of America, so it’s thrilling to know that soon all 50 states will support this growing hobby and long-standing tradition,” said Gary Glass, director, American Homebrewers Association. “We appreciate the backing of all of the homebrewers, the dedicated grassroots efforts of Right to Brew and the legislators who have worked so diligently to make homebrewing a reality in Alabama. We are especially grateful to Representative Mac McCutcheon who introduced this bill and has fought long and hard for its passage, along with Senator Bill Holtzclaw.”

Alabama is the last state holding out against legalizing homebrewing. In March 2013, Mississippi became the 49th state to pass homebrew legislation. The AHA has been working with Right to Brew for five years in order to get the Alabama bill passed.

Homebrewing became federally legal in 1979, though the 21st Amendment predominantly leaves regulation of alcohol to the states. Therefore, even though homebrewing is federally legal, it is up to individual states to legalize homebrewing in state codes. Once the Alabama bill is signed by Gov. Bentley, it will be the first time since pre-Prohibition days that homebrewers in all the states can legally brew at home.

The next step is for the Alabama governor to sign the bill into law. If you’re in Alabama, please urge the governer to do so. You can find out how to help at the Craft Beer website.

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Mississippi Makes Homebrewing Legal

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The American Homebrewers Association announced this morning that the governor of Mississippi, Phil Bryant, signed into law a bill effectively legalizing homebrewing within the state. Congratulations to all of beer lovers and homebrewers in Mississippi that worked so hard for so long to make this happen, and especially the hoproots organization Raise Your Pints. Forty-nine down, one to go. Now that Mississippi finally allows homebrewing, only Alabama does not permit its citizens to brew beer at home. Check out the full story at the AHA’s press release.

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Class Action Suit Alleges ABI Watering Down Bud & Michelob

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Just when you think things can’t get any stranger, beer drinkers in three states — California, Pennsylvania and New Jersey — have filed a class action suit against Anheuser-Busch InBev. The L.A. Times is reporting in Beer drinkers accuse Anheuser-Busch of watering down brews, that the lawsuit alleges the following:

Ten Anheuser-Busch products were named in the lawsuits: Budweiser, Michelob, Michelob Ultra, Bud Ice, Bud Light Platinum, Hurricane High Gravity Lager, King Cobra, Busch Ice, Natural Ice and Bud Light Lime.

Former employees at the company’s 13 breweries — including some in high-level positions — are cooperating with the plaintiffs, said San Rafael, Calif., lawyer Josh Boxer, the lead attorney in the case.

“Our information comes from former employees at Anheuser-Busch, who have informed us that as a matter of corporate practice, all of their products [mentioned in the lawsuit] are watered down,” Boxer said, according to the Associated Press. “It’s a simple cost-saving measure, and it’s very significant.”

The excess water is added just before bottling and cuts the stated alcohol content by 3% to 8%, he said.

ABI, naturally, is calling the lawsuit “groundless,” but it will be interesting to see how it all plays out.

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Cartoon by Tony Husband.

UPDATE: NBC News is also now reporting this story, in Budweiser waters down its beer, lawsuit alleges. Apparently, Bloomberg broke the story earlier today, and also the AP, the BBC and Business Day have all weighed in.

UPDATE 2: I’ve seen a lot of commentary on this story in the interwebs suggesting that since there appears to be no test results from the Plaintiffs in this case that perhaps they are simply confusing high-gravity brewing with actively lowering the final alcohol percentage, which is a reasonable assumption. But there may be another possibility. Thanks to Stan at Appellation Beer for pointing out a post from last October by Gary Spedding at his Alcohol Beverage Testing News. I’ve known Gary for a number of years. He runs a lab in Kentucky called Brewing and Distilling Analytical Services, LLC and also most years presents an orientation exercise for GABF judges the day before we start each year. It’s sort of a continuing education component of the judging experience. His presentations are always interesting and informative and, needless to say, Spedding’s expertise is unassailable.

Last October, he posted Gaining its airs and losing its graces — a Tale of Two Buds, which he wrote in response to a popular article last fall from Bloomberg Business Week entitled The Plot to Destroy America’s Beer. In addressing the suggestion in the article that Budweiser beer had changed after InBev took control of Anheuser-Busch, noted the following experiences he’d had with the beer in recent months.

Bud has been our control beer in our laboratory … for calibrating our alcohol instruments Bud goes in after calibration to see hopefully 5.00% abv. pretty much on the nose. Not so recently. Now as low as 4.94% after slipping from 4.98% earlier in the year. Losing it graces by higher airs it may be toppling from its top spot and is no longer our control beer of choice. But it is changing. A tale of two Buds (early and late) would reveal much more. Over the years the international bitterness content has declined from about 12 in the late 90′s to 7-8 today — another parameter to watch.

That original post also included a discussion of increasing oxygen levels, but Spedding had a lengthy discussion with Paul Cobet, who’s the Director of the Technical Center for ABI in St. Louis. The oxygen question is apparently now less of a concern and appears to be instrument-driven, and Gary updated that with a newer post, Regaining its Graces — Driving Oxygen Down — Good for Budweiser. So while the plaintiffs may not have tested the beer — still odd, admittedly — there is apparently some reason to think their case may hold water after all.

Here A Blue Law, There A Blue Law

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Given it’s a Sunday, when Blue Laws are usually in effect, I thought I’d share this comic strip by Danny Lewis, who’s an artist living in Massachusetts. Blue Laws, of course, are antiquated laws, usually religiously based.

A blue law is a type of law designed to enforce religious standards, particularly the observance of a day of worship or rest. In the US, most blue laws have been repealed, declared unconstitutional, or are simply unenforced; though prohibitions on the sale of alcoholic beverages or prohibitions of almost all commerce on Sundays are still enforced in many areas. Blue laws often prohibit an activity only during certain hours and there are usually exceptions to the prohibition of commerce, like grocery and drug stores. In some places, blue laws may be enforced due to religious principles, but others are retained as a matter of tradition or out of convenience.

While most have been repealed, not all of them have been, and his comic strip talks about some of the remaining ones.

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Click here to see the cartoon full size.

State Beer Excise Tax Rates As Of 2011

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The Tax Foundation, a Washington think tank dedicated to al things taxable, had last week for their weekly Monday Maps on the Tax Foundation’s blog an infographic on State Beer Excise Tax Rates as of September 1, 2011. Alaska has the highest tax rate and Wyoming the lowest. And, of course, the chart doesn’t include the federal excise taxes breweries have to pay or any local taxes, either. Still, it’s always interesting to see the differences laid out on the map.

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Obviously, it’s hard to read at this size, but you can check it out full size at the Tax Foundation blog.