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Friday, June 19, 2009

Beer Law

My love of good beer (and my part-time gig as a home-brewer) means that every now and then I think about designing a course in Beer Law that would explore various beer-related cases and what they tell us about the law.  Leading my draft syllabus so far are the following:

In Craig v. Boren, the Court ruled that governmental gender-based classifications violate the equal protection clause unless the government can prove that its action is substantially related to an important interest.  Applying this rule to the facts at hand, the Court ensured equal access to bad beer regardless of sex by striking down an Oklahoma law that permitted young women between the ages of 18-21 -- but not their young male counterparts -- to buy 3.2% beer.

On the other hand, in Moose Lodge No. 107 v. Irvis, the Court rejected an equal protection challenge to a Moose Lodge's refusal to serve beer (or any other alcohol) to African-Americans.  Pennsylvania's grant of a liquor license to the lodge, the Court held, did not constitute sufficient government entanglement for the Constitution to apply to the denial of service.

Turning to free speech issues, the Court struck down state laws that banned ads featuring the price of beer and other alcoholic beverages in 44 Liquormart, Inc. v. Rhode Island.  It ruled that such bans impermissibly regulated truthful, nonmisleading commercial speech in violation of the First Amendment.

There's a lot we could do with commercial speech, but for now I'll stick with just one more case in this area:  Bad Frog Brewery v. New York State Liquor Authority, in which the Second Circuit considered New York's ban on a beer label's "picture of a frog with the second of its four unwebbed 'fingers' extended in a manner evocative of a well known human gesture of insult."  This ban also fell to a First Amendment challenge, as the panel found that it did not directly or materially advance -- nor was it narrowly tailored to achieve -- the state's substantial interests in promoting temperance and protecting children from profane advertising.  

In one of the few modern-day cases interpreting the 21st Amendment, the Court in Granholm v. Heald struck down state laws that permitted in-state -- but not out-of-state -- wineries to sell wine directly to in-state consumers as state discrimination against interstate commerce in violation of the dormant commerce clause.  (I know, I know, it's about wine, not beer -- but the analysis would apply as well to state laws regulating local microbreweries).

Switching from con law to torts:  Donoghue v. Stevenson marked the introduction of modern products liability approaches to England in 1932.  There the plaintiff poured her ginger beer (I'm stretching the beer concept here) from an opaque bottle, only to watch what appeared to be a decomposed snail fall from the bottle and into her glass.  The House of Lords permitted the plaintiff to sue the beer manufacturer for negligence despite the absence of a contractual relationship between the parties.

That's as far as I've got so far.  I welcome additional suggestions.

Posted by Helen Norton on June 19, 2009 at 05:47 PM | Permalink


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I have been giving a lecture on the law of beer in the international context for years as part of a course on international business I teach for Pacific McGeorge and the students love it.

Posted by: Joe Smallhoover | Jun 25, 2009 8:22:04 AM

If you are a fan of beer, you should know that almost all normal beers sold in the US have an alcohol content of around 3.2% by weight, which is the number the 3.2 Beer statutes refer to, so that Craig v Boren turns out to be quite silly.

It is more common to give the alcohol content of beer in percent by volume, and 3.2% beer has an alcohol content of 4% by volume, slightly higher than some common beers and slightly lower than others. My favorite delicious German beers, such as Andechs, are strong in taste but often weaker in alcohol content than 3.2 Beer. When I asked them there at Andechs about the strength of their beer, they told me 3%. Whether measured by volume or by weight, this fabulous beer is weaker than the common 3.2 American Budweiser, Miller or Coors.


Posted by: Jimbino | Jun 23, 2009 1:59:41 PM

Thanks, all, for such terrific suggestions! My syllabus is filling up nicely . . . . Cheers!

Posted by: Helen Norton | Jun 22, 2009 11:37:55 AM


I don't think you could offer a course in beer law without Guinness v Saunders, [1990] 2 A.C. 663 (H.L.). The case is as noteworthy for its dictum on executive compensation and fiduciary duties as the company is for its marvellous stout!



Posted by: Len Rotman | Jun 22, 2009 10:19:07 AM

Since you have already broadened this to include wine, I feel justified in including spirits by analogy: I really must get in Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 344 (1964), just for the amusing statement that I will quote. In that case the Supreme Court considered the relationship between the Export-Import Clause and the 21st Amendment. Kentucky imposed a tax of 10 cents per gallon on the importation of whisky into the state. The Court held that this violated the Export-Import clause

Mr. Justice Black, dissenting, said:

"Although I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon, I never understood the Constitution to require a State to give such preference. (My dissenting Brother asks me to say that this statement does not necessarily represent his views on the respective merits of Scotch and bourbon.)"

His "dissenting Brother", for what it's worth, was Mr. Justice Goldberg. The New York Jew and Alabamaian perhaps had rather different alcoholic tastes.

Posted by: DNJ | Jun 22, 2009 4:40:38 AM

May I suggest some detours into administrative law (http://www.ttb.gov/beer/index.shtml), tax law (http://www.ttb.gov/tax_audit/atftaxes.shtml), contract law (http://blog.mlive.com/kalamabrew_impact/2009/05/HP12112232716_EXCHANGE_04272009-130245.pdf), and environmental law (http://www.deq.state.or.us/lq/sw/bottlebill/bottlebillfaq.html)?

Of course, the whole range of state law and regulation provides significantly more material...

Posted by: Judah | Jun 21, 2009 4:35:30 PM

Gotta get South Dakota v. Dole in there someplace...

Posted by: C. Zorn | Jun 20, 2009 9:31:52 PM

I homebrew as well - and grow hops, although this is my first year with the latter. You might consider looking into the questions of Federal regulation of brewing. One of the more interesting I have found is the question of legality of cold distilling cider into applejack (a Federal offense, I think), as applejack is a spirit and thus regulated, whereas one can make as much apple cider as one wishes in homebrewing.

Posted by: Jonathan | Jun 20, 2009 4:35:43 PM

btw, that Bloor case was the first to explore what "best efforts" means, and at least as of a decade ago was still a very important case. the ruling was that what was reasonable for the distributor might not be reasonable for the manufacturer, and hence a promisor of best efforts might be in breach even if it acted perfectly reasonably in its own view.

Posted by: law type | Jun 20, 2009 10:53:19 AM

Mugler v. Kansas, Beer Co. v. Massachusetts, Bartemeyer v. Iowa.

Posted by: Chris | Jun 20, 2009 12:21:39 AM

Bloor v. Falstaff Brewing Corp., a contract case in which a brewer, obligated to use "best efforts" to sell a competing brand, explained their actual efforts with the classic line: "We sell beer and you pay for it . . . . We sell beer, F.O.B. the brewery. You come and get it."

See also the umpteen trademark cases all over Europe between (American) Budweiser and (Czech) Budweiser.

Posted by: Bruce Boyden | Jun 19, 2009 11:08:34 PM

If you want to discuss illegal contracts, check out Anheuser-Busch Brewing Ass�n v. Mason, 44 Minn. 318, 321, 46 N.W. 558, 559 (1890). Brothel owner trying to get out of a contract b/c it was illegal. Court holds that one must participate (rather than have knowledge of) in the illegal activity in order to make the contract void for illegality (public policy).

Posted by: anon anon | Jun 19, 2009 6:50:32 PM

If you want to add an international aspect to it, this has always been an interesting aspect of protectionism + 'the love of good beer':


Posted by: Steve L | Jun 19, 2009 6:19:03 PM

Home brewed beer is wonderful. We have a batch of "Max and Annie's Michigan Porcupine Pale Ale" bottled and aging downstairs right now. Our Max and Annie's Jewish Stout "The Hair of the Dog That Licked You" got rave reviews. Read a little, write a little, play golf, brew some beer. Ah, the life of a prof.

Posted by: Jeff Lipshaw | Jun 19, 2009 6:14:08 PM

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