First Sam Calagione of Dogfish Head Beer couldn’t sell his “Bitches Brew” in Michigan and now Maryland based Flying Dog Brewery is suing the Michigan State Liquor Control alleging the agency is censoring its free speech by rejecting labels for the bottler’s “Raging Bitch” 20th Anniversary India Pale Ale
In a complaint filed Friday, the brewery asks a federal judge to issue an injunction overriding the board's decision and allow it to advertise and sell the beer here. The commission, which regulates alcohol sales and advertising, deemed language on the bottle to be “detrimental to the health, safety, or welfare of the general public,” according to the lawsuit, which also names five commissioners as defendants.
Flying Dog says in court records it has refrained from retailing in the state out of fear of criminal penalty – up to four years and a fine of up to $5,000 - for selling without a license.
The company markets approved labels, including “Doggie Style” Classic Pale Ale, “In Heat Wheat” Hefeweizen Ale and “Old Scratch” Amber Lager, at many chain and specialty stores in West Michigan.
“Flying Dog's inability to legally sell (the anniversary ale) in Michigan has damaged Flying Dog by costing it significant sales,” of the beer and branded products, the lawsuit claims. “(It also is) generally damaging Flying Dog's goodwill in Michigan and thus hurting the sales of Flying Dog's other beers and products that may be legally sold.”
A spokeswoman for the Liquor Control Commission could not be reached and it's not clear if the state Attorney General, which would handle the case, had been served with the lawsuit.
The brewing company, which has its roots in Colorado and has ties to Gonzo-journalist Hunter S. Thompson, asserts that the state violated its First Amendment rights by refusing to endorse the artwork and inscription from renowned illustrator and writer Ralph Steadman. Steadman partnered with Thompson for “Fear and Loathing in Las Vegas,” and has written for The New York Times and Rolling Stone.
Flying Dog says it applied to sell its new beer, now its most popular and voted as one of the top 10 new beers of 2010 by a trade publication, in Sept. 2009. Commissioners turned down the request a month later, leading to an administrative appeal.
The commission affirmed its decision with commissioner Patrick Gagliardi offering that the board is not adverse to edgy writing but that “we do have a responsibility here to place product in a public place with the names that are on it, and that's what we take very seriously,” according to the suit.
Gagliardi was referring to Steadman's partial label inscription of “Remember, enjoying a Raging Bitch, unleashed, untamed, unbridled – and in heat- is pure GONZO.”
The profanity used by Flying Dog has never been approved by the state commission, but the state has allowed sales of alcoholic beverages with a vulgar term on the label. Among those are a Grand Rapids brew “Dirty Bastard,” crafted by Founders.
Laws governing the liquor board allow them to reject the registration of anything that is “deemed to promote violence, racism, sexism, intemperance or intoxication or to be detrimental to the health, safety or welfare of the general public.”
Flying Dog's proposed label, outside of the profanity, has a drawing of a female dog and reads, in part: “Two inflammatory words...one wild drink. Nectar imprisoned in a bottle. Let it out...It has taken 20 years to get from there to here. Enjoy.”
The beer debuted 20 years after George Stranahan and Richard McIntyre opened the Flying Dog brewpub in Aspen, Colo. At another bar, they befriended Thompson, who introduced them to Steadman. That led to the collaboration of Steadman's irreverent illustrations and words being on the bottler's beer.
Brewery operations later moved to Maryland and the company now sells about 900,000 cases per year.
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