To the ATF, what’s foul is fouled up

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“Containers of malt beverages shall not contain any statement, design, device or representation which is obscene or indecent.”

– Title 27, Sect. 7.29(a)(3), Code of Federal Regulations, Alcohol, Tobacco and Firearms.

If the Bureau of Alcohol, Tobacco and Firearms rated movies, the XXX “Sex Party Three” – currently on the marquee at the Forum adult theater at 22nd and Market – would have gotten a Disneyesque G.

Instead, the ATF reviews beer labels.

And that means foul talk and gestures are making their way onto a bottle near you. Grab a brew, and here’s what you might find:

* Road Dog Ale, from Colorado, with the distinctive artwork of gonzo artist Ralph Steadman and the slogan, “Good Beer No S – – -.”

* Bombers’ Pin-Up Beer, from Germany, with a drawing of a B-24 Liberator nicknamed “Strawberry Bitch.”

* Manneken Pis, the Belgian white ale, featuring a drawing of the famous Brussels fountain statue of a playful little boy taking a leak.

* Bad Frog Beer, possibly the best known of the bunch, with its “mean, green and obscene” cartoon frog flipping the bird.

ATF gave the thumbs-up to each.

Asked for an explanation, a spokeswoman said because the agency has no regulatory guidelines defining obscenity, it bases its approvals on “the community standards of the year 2001.”

It may get bleeped in your family newspaper, but the spokeswoman said s – – – is hardly an obscenity anymore.

Don’t get me wrong – this is not a call for government censorship. What I can ‘t understand, though, is how a notoriously hardline federal agency (remember Waco) shrugs off language that used to earn you an Ivory Soap mouthwash.

And neither can brewers and other industry experts who regularly contend with troublesome ATF labeling regs.

Most of those rules are reasonable. The agency reviews more than 70,000 beer, wine and spirits labels a year to ensure they accurately describe the contents, from volume and alcohol to ingredients and style.

Thus, brewers say, the ATF’s label reviews are often an exercise in nitpicking that has nothing to do with obscenity issues.

Bill Covaleski of Victory Brewing says his file folder of ATF rejections is thicker than his approvals. Victory’s Moonglow Weizenbock, for example, was initially turned down because the label referred to its “spicy flavor.”

“They wanted to know which spices were in the beer,” Covaleski said. “I had to prove that ‘spicy’ is an accepted term to describe the flavor of beer, even if it doesn’t actually include spices in the ingredients.”

More absurd was ATF’s rejection of Tupper’s Hop Pocket, an ale by Old Dominion Brewing in Virginia. The original label accurately described it as “highly hopped.” ATF interpreted that as an illegal claim of the beer’s alcoholic strength, though the amount or type of hops have nothing to do with strength. The label was changed to “extravagantly hopped.”

Worse than the nitpicking, though, is the inconsistency. Brewers and others say ATF inspectors rarely agree on standards among themselves.

Under agency regs, for example, brewers are prohibited from making false claims of “geographical significance.” In other words, you can’t call your beer an Irish stout unless it was actually brewed in Ireland. (That’s why many Irish-style stouts are called “dry” stouts.)

A few years ago, ATF cited its geographic rules when it banned the Victory’s HopDevil IPA label. The bottle described the devil as a “mythical creature in the lure of Belgian farmers.”

“They wouldn’t allow the word ‘Belgian’ because they said that would be misleading the consumer into thinking it was a Belgian product,” Covaleski said.

But take a look at bottles of Blue Moon, a Coors product boldly described as a “Belgian white,” It’s brewed in Memphis, Tenn. Likewise, Miller laughably declares its Lite is “a true pilsner beer,” though that technically describes a beer made in Pilsen, in the Czech Republic.

ATF gave both those brews the green light.

“It really depends on how your inspector interprets the rules,” said one lawyer who specializes in label law.

Brewers sometimes complain, but they rarely battle.

“You can fight them, or get on with it,” Cherry Hill’s Flying Fish Brewing president Gene Muller said. “I’d rather play it safe than go to war with the ATF.”

Ironically, experts say the ATF’s own fear of a fight is behind its acceptance of foul-language beer labels.

“Obscenity is very subjective. How do you define it?” said the label lawyer, who asked that his name not be printed to avoid hassles with the agency.

“I had one label that, initially, they weren’t going to approve because of the language. The Civil Liberties Union called and told them they were going to fight it on First Amendment issues.

“The ATF backed off immediately. The ATF is unwilling to pick a fight on the obscenity issue.”

Maybe for good reason.

Consider Bad Frog Beer, whose finger-flipping amphibian was banned by Pennsylvania’s Liquor Control Board on obscenity grounds. Among other issues, LCB spokeswoman Donna Pinkham said the board was concerned because “the brewer said people could order it at a bar by flipping the bird. Hey, you do that in some bars. . .people with a few drinks don’t need much provocation.”

When New York banned the label, Bad Frog appealed on First Amendment issues. . .and won. A federal appeals court ruled in 1998 that New York’s ban did not “materially advance its asserted interests in insulating children from vulgarity. . .”

If a label that clearly states bleep you isn’t obscene, it’s no wonder the ATF doesn’t pick a fight.

Greg Koch, president of Stone Brewing in California, said he doesn’t see why anyone should complain about the language. One of his ATF-approved labels is tied up with authorities in Indiana.

“They tell me my label contains an obscene or suggestive word or illustration. I asked them to tell me what was obscene, and they declined to respond,” said Stone.

His beer: Arrogant Bastard.

   Joe Sixpack, by Staff Writer Don Russell, was written this week with a bottle of North Coast Old Stock Ale.

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