By Scott Hervey
Those in the wine industry regularly traverse a vast array of statutes, rules and regulations in an effort to get their grape from the vine into your glass. One set of regulations all wine producers deal with are those governing wine labeling. The federal government, which regulates wine labels through the Alcohol and Tobacco Tax and Trade Bureau (the TTB), imposes rules which state what must and what may not be included on a wine label. A winery or wine producer must obtain federal approval of each wine label before bottling wine in the United States. In addition to federal approval, some states have their own wine label approval process wine producers and or distributors must go through prior to a wine being sold within that state. Most of the time the federal and state wine label approval process is straight forward. However, every so often a situation arises which shows the process can be complex and subjective.
A recent example is Hann Family Wines and the problem they have had with their Cycles Gladiator label. The label (shown below) is a reproduction of a circa 1895 poster ad for a bicycle featuring the side view of a nude nymph. The Alabama Alcoholic Beverage Control Board rejected the label on the grounds that it violated regulations which prohibited wine advertisement and labels featuring “any person(s) posed in an immodest or sensuous manner.” Similar to some states, Alabama requires wineries and distributors to submit wine labels to the Alabama ABC for approval prior to distribution and sale within Alabama.
Should Hann Family Wines have anticipated this problem with the Alabama Alcoholic Beverage and Control Board? Probably not. Prior to submitting the label to the Alabama ABC the label was submitted to and approved by the TTB. Federal wine labeling regulations also prohibit “[a]ny statement, design, device, or representation which is obscene or indecent.” However, it appears the TTB did not consider the Cycles Gladiator label either obscene or indecent.
Like Alabama, other States that regulate wine labels have similar prohibitions against obscene or indecent labels. (Some States, such as California and Texas do not require an independent review of wine labels but merely require that the label have been approved by the Federal government.) Based on the number of States where Cycles Gladiator is available, (according to Hann Family Wines website), it appears that most if not all of the other States that also regulate wine labels did not find the Cycles Gladiator label obscene.
Hann Family Wines also applied to Federally register the label as a trademark. Federal law regulating trademarks prohibits the registration of a mark that “consists of or comprises immoral, deceptive, or scandalous matter.” However, the examining attorney assigned to the Cycle Gladiator application did not refuse registration of the mark on those grounds. (California’s trademark act contains similar language: “A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if ….[i]t consists of or comprises immoral, deceptive, or scandalous matter. Cal. B&P Code §14205(a).)
The determination of what is and isn’t obscene has always been based on “contemporary community standards.” This certainly allows the Alabama ABC to impose its subjective assessment of whether the label is obscene. However, when the Cycles Gladiator wine is available in 49 other States, one can’t help question whether the Alabama ABC’s assessment fell short.