Yesterday the United States District Court for the Western District of Texas handed down its ruling on the joint lawsuit filed back in October of this year against the Texas Alcohol and Beverage Commission (TABC) by Austin brewery Jester King, Zax Restaurant and Bar and Authentic Beverage.
Essentially the Federal court states that breweries in Texas can now: label a beer a ‘beer’ and an ale, an ‘ale’, regardless of the ABV; advertise where their beers are sold; as well as describe the alcohol content of their beers with words like ‘strong’. “In a remarkable (though logically dubious) demonstration of circular reasoning” Judge Sparks states in his ruling filed yesterday, the “TABC attempts to defend the constitutional legitimacy of the Code through an appeal to the statutory authority of the Code itself.” Referring to the required use of the terms “beer”, “ale”, and “malt liquor”, he writes “TABC’s argument, combined with artful legislative drafting, could be used to justify any restrictions on commercial speech. 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.’ Under TABC’s logic, Texas would then be authorized 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.’”
The lawsuit contended that several beer laws in the State of Texas were unconstitutional and violated the first amendment, as well as equal protection clause. Under the current system mandated by TABC Code, everything brewed over 4% alcohol by weight must be labeled an “Ale” or “malt liquor” and everything brewed at or below 4% A “beer”. This can cause what is brewed to be labeled something different than the style itself is called. It’s like calling an pale ale below 4% a pale beer. Stone Brewing Co in Escondido, California has not brought their ‘Levitation Ale’ into Texas for this reason.
State law also prevents breweries from using words that accurately reference alcoholic strength like “strong” or “low alcohol”. If you like a Belgian Dark Strong Ale and wanted one from let’s say Ranger Creek Brewing and Distilling in San Antonio, you’d almost have to ask if they had it, as it wouldn’t be mentioned on the bottle. This goes for advertising as well.
Other inequities named in the suit, but not overturned: breweries are not allowed to sell on site, while wineries are; brew pubs can not bottle and distribute off premises; and prohibition against overseas breweries selling to distributors in Texas, who already have a license and instead require them to obtain a separate license. Although these issues fall under the Equal Protection clause and are considered tougher to fight, Judge Sparks reasoning for not ruling overturning them is less clear to me, however in his ruling he does go on to say that the State of Texas is fortunate that the burden of proof rested with the plaintiffs, or they may have come out worse in the suit.
Reaction from the brewing community all over the United States has been swift and emphatic towards the ruling. I spoke to Dean Brundage, brewer and co-founder at New Republic Brewing in College Station, Texas, who said he’s please with the ruling, but would have been ecstatic if the judge had ruled favorably on the points related equal protection clause. On twitter Greg Koch, Stone Brewing Co’s enigmatic co-founder and CEO, said “Hooray to @jesterkingbeer & their noble efforts in Texas. Well done guys, well done! Thx for fighting for all brewers’.
Although not everything was overturned, it’s at least a start in changing laws that do not reflect the current times, do not provide equal protection and commerce to breweries that wineries enjoy and sends a message that laws dating back to prohibition and before need to be changed.
Although the wine industry still has some issues with state law in Texas, they enjoy a far better climate in Texas than breweries. It’s a money issue only for malt beverages in Texas and that’s not equitable. I’d like to walk into my local store an pick up,a six-pack of beer from a brewpub like Freetail Brewing in San Antonio, Texas. I’d like to be able to visit Avery Brewing in Boulder, Colorado or Ranger Creek in San Antonio, Texas, and pick up a bottle of a special release I can’t get in the store. The time has finally come for Texas craft beer.
If the Federal government can see the inequality in the laws, it gives us some hope that the state government will soon as well. I don’t see that they have much of a choice in the matter. In fact, Judge Sparks states in his ruling the TABC defense counsel admitted that the state did not submit much in the way of summary judgement and thus didn’t meet their burden of proof. It’s only a matter of time before it all changes in Texas. Laws might be slower to change here, but when it’s right, it’s right. The State of Texas can’t truly argue the moral, legal or economics of this forever and expect it not to change. There’s no logic or real support for their position to laws passed generations ago. The economy and the world have changed, it’s time to pony up.