legally interesting/controversial

On July 10th, 2024, the Northern District Court of Texas issued an order in Hobby Distillers Association, et al., v. Alcohol and Tobacco Tax and Trade Bureau, et al. The Court held the federal ban on at-home distilling and other location restrictions for distilled spirits plants unconstitutional. The Court gave the Government 14 days to file an emergency appeal, which is likely.  If upheld, the ultimate impact of this ruling is the removal of most, if not all, location restrictions for U.S. distilleries as enacted in 1868. With no restrictions on the location of licensed premises, locations long unavailable for use in spirit production will be fair game. This means that industry members could get permits to produce vodka or whisky in Places such as their homes or on a seafaring vessel.

The order declares the federal ban on distilled spirits plants being “located in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house, or on board any vessel or boat, or on premises where beer or wine is made or produced, or liquors of any description are retailed, or on premises where any other business is carried on” unconstitutional. Hobby Distillers Ass. v. Alcohol and Tobacco Tax and Trade Bureau, No. 4:23-cv-1221-P (N.D. Tx. 2024)  (citing 26 U.S.C. § 5178(a)(1)(B)).

Criminal penalties associated...

Last Thursday (May 2, 2019), the USPTO issued Guidance for the examination of trademark applications for hemp and cannabidiol (“CBD”) containing goods. The guidance comes after the enactment of the 2018 Farm Bill, which exempted hemp (i.e., cannabis sativa L. with a delta-9-tetrahydrocannabinol (“THC”) concentration of not more than .3% on a dry weight basis) and its constituents (e.g., CBD) from the definition of “Marihuana” [sic] in the Controlled Substances Act (“CSA”). As a result of the Farm Bill, hemp is no longer a controlled substance.

The USPTO refuses to register marks for goods and/or services that show a clear violation of federal law, regardless of the legality of the goods/services under state law. Previously, this included goods that contain hemp or CBD – both of which were controlled substances.

The USPTO has indicated that applications filed on or after the effective date of the Farm Bill (December 20, 2018), which identify goods that are, or are derived from, hemp, may proceed towards registration, provided the identification of goods specifies that they contain less than 0.3% THC. Additionally, applicants who filed before December 20, 2018 will have the option to amend the filing date of their applications to December 20, 2018, and also be required to amend the identification of goods.

Importantly, the Farm Bill explicitly...

Atlas Brew Works sued the United States on January 15, 2019 in the DC District Court. Atlas is a brewer based in Washington, DC and argued that the law does not allow the government to, at the same time, require a label approval for beer, when the shutdown makes it impossible to obtain such an approval.

As of this writing, Google has 48,600 articles about the controversy, so I will refrain from summarizing the case, or trying to guess who will win. Instead, I will set out some of the juiciest morsels, from the fascinating arguments presented by both sides. On one side is the famous lawyer Alan Gura, representing the beer company. On the other side is the Acting Attorney General Matthew Whitaker and Assistant U.S. Attorney Jason T. Cohen. The judge is the hugely accomplished Christopher R. Cooper.

Atlas’ complaint, filed January 15th, begins:

The First Amendment never “shuts down.” … The [FAA Act] subjects Atlas to criminal penalties should it ship beer with unapproved labels in interstate commerce. But Congress has not enacted legislation funding the issuance of [COLAs] for beer labels at the present time. There is no telling whether or when such legislation might be forthcoming, or how long it might take the government to approve COLA applications...