Category archives for “First Amendment”

Texas Alcoholic Beverage Commission Releases New Advisory in Connection with Authentic Beverages Com

March 21, 2012

As readers of this blog may recall, at the end of 2011 interesting new precedent came out of Texas when the United States District Court for the Western District of Texas granted partial summary judgment for plaintiffs in Authentic Beverages Co., Inc. v. Tex. Alcoholic Beverage Comm’n, No. A-10-CA-710-SS (D. W.D. Tex., December 19, 2011), and consequently struck down some Texas’ laws regarding beer labeling, advertising alcoholic content and suppliers telling consumers where their products can be found for purchase. (See our prior coverage of the case here.) About a month later the Texas Alcoholic Beverage Commission (“TABC”) issued Marketing Practices Bulletin 49 regarding the case (available here) and today they’ve just released Marketing Practices Bulletin 50 (available here). The new bulletin stresses that Texas’ stance on suppliers pre-arranging and pre-announcing promotional activities has not changed.

Texas allows liquor manufacturers and wholesalers to pre-arrange and pre-announce promotional activities, for example bar spending or sampling events, novelty item giveaways, and promotional appearances, but they do not allow beer manufacturers and distributors to do the same. While the Authentic Beverages decision resulted in the allowance for beer manufacturers and distributors to advertise retail locations where their products can be purchased (provided the advertising is not cooperative), it has not changed anything regarding pre-arrangement and pre-announcement of promotions. Those promotional activities by beer suppliers must be spontaneous, meaning they are not pre-arranged with retailers or pre-announced to consumers. The TABC is still in the process of formal rulemaking to deal with the effects of the Authentic Beverages decision, at which time Marketing Practices Bulletins 49 and 50 will be superseded by the new rules, but we do not expect that their position will change on this matter and violations are likely an enforcement priority for the TABC.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2012 · All Rights Reserved ·


Texas Advertising and Labeling Laws Found Unconstitutional

January 10, 2012

“The practice of law is often dry, and it is the rare case that presents an issue of genuine interest to the public. This is just such a case, however.”*

The First Amendment and beer aren’t typical dance partners, but they dosey doed on December 19, 2011 when the United States District Court for the Western District of Texas granted summary judgment in part for plaintiffs in Authentic Beverages Co., Inc. v. Tex. Alcoholic Beverage Comm’n. In granting partial summary judgment, the Court found in favor of plaintiffs’ arguments that the First Amendment was violated by Texas’ statutes and regulations that (a) prohibited breweries and distributors from telling customers where their products can be purchased, (b) prohibited advertising the alcoholic content of malt beverages or any suggestions of alcoholic strength, and (c) mandated the use of “beer”, “ale” and “malt liquor” labels on malt beverages with such terms statutorily defined in a manner inconsistent with the ordinary use of those terms.

The Texas Alcoholic Beverage Commission decided not to appeal the District Court’s decision and instead published Marketing Practice Bulletin 49, Changes to Current Regulations – Advertising and Labeling, on January 6th (available here). The Bulletin will eventually be superseded by formal rulemaking from the Commission after a stakeholders’ meeting on January 27, 2012. Until new rules are in place, the Bulletin allows manufacturers and distributors to advertise the retail locations where their products can be bought, provided such advertising is not cooperative. Additionally, manufacturers and distributors may refer to alcoholic content, including using words like “full strength” and “strong” in advertisements. Finally, brewers may continue to label malt beverages in accordance with the definitions of “beer,” “ale” and “malt liquor” provided in §1.04 of the Texas Alcoholic Beverage Code, or they may provide the percentage of alcohol by volume (“abv”), stated to the nearest 1/10th of a percent, on the label. If abv is stated, the product may also be labeled with whatever term for such product is commonly recognized in the brewing industry. For purposes of Texas regulatory matters products labeled 5.1% abv or less will be considered beer by the Commission.

* Authentic Beverages Co., Inc. v. Tex. Alcoholic Beverage Comm’n, No. A-10-CA-710-SS (D. W.D. Tex., December 19, 2011), available at http://pdfserver.amlaw.com/tx/abc.pdf.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2012 · All Rights Reserved ·


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