What’s in a Name? TTB Labeling Standards of “Obscene” and “Indecent”
May 29, 2015
If you have ever applied for labeling approval (or, a “COLA” as it’s called by TTB, as in Certificate of Label Approval), you may be aware of TTB’s example list of items they scrutinize during approval. Below is the list taken from TTB’s website:
The presence of mandatory information, such as the name and address of the responsible advertiser and product class/type information;
Statements or depictions that are inconsistent with approved product labels;
Statements that are false, misleading, or deceptive;
Statements, designs, or the use of subliminal representations that are obscene or indecent;
False or misleading statements that are disparaging of a competitor’s product;
Prohibited uses of the word "pure" for distilled spirits products;
Misleading or false curative or therapeutic claims;
The form and use of mandated and optional alcohol content statements;
Misleading references to carbohydrates, calories, fat, protein, and other macronutrients or "components;" and
Specific health claims and health related statements.
Not surprisingly, many industry members get caught up on the “obscene or indecent” requirement. After all, determining what is “obscene” can be highly subjective. Former Supreme Court Justice Potter Stewart is famous for saying “I know it when I see it” in reference to the same question in the case of Jacobellis v. Ohio.
In the alcohol world things are not much different. In 2001, Flying Dog Brewery wanted to use the phrase “Good Beer No Sh*t” on a beer label. Before TTB reviewed the label, the Colorado ABC rejected it on the grounds that the phrase was obscene. Flying Dog Brewery then teamed up with the ALCU and sued the state of Colorado, alleging that the ban on the phrase improperly infringed on the brewery’s First Amendment rights to free speech. In the end, Flying Dog Brewery prevailed and the label was ultimately approved by Colorado and the TTB.
In recent years there appears to be a trend in which TTB has become more lenient in labeling approval. For example, a wine called “Ass Kisser Chardonnay” was recently approved, as was a beer called “Arrogant Bastard Ale”. Unfortunately, there is not much public notice in terms of what TTB rejects for being “obscene or indecent”, which leaves quite a bit of guesswork.
Although it’s very difficult to predict whether a label will be considered “obscene or indecent” by TTB, there seems to be a growing consensus of optimism that TTB is easing its standards and affording more leeway towards new label names.
For more information on federal alcohol labeling requirements, see 27 CFR §5.31 through §5.42 (distilled spirits); 27 CFR §24.257 (wine); and 27 CFR §25.141 through §25.145 (beer).
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