Apr 29, 2019
Apr 29, 2019
By Charles Dresow
I have always wondered how I can buy a bottle of bourbon that—according to the label—is the nectar of whatever god the distiller believes in, but then upon tasting seems closer to carburetor cleaner or torpedo fuel than something meant for human consumption. Bourbon Justice: How Whiskey Law Shaped America by Brian F. Haara answers that question by describing the legal challenges to bottle labelling. The book is a fun read for those who like bourbon, justice, American history, or American legal history. It describes how the history of American whiskey generally, and bourbon specifically, has influenced the development of our law as it applies to diverse areas such as taxation, trademark, intellectual property, and criminal justice. It even delves into the degree to which disputes over how to identify bourbon impacted American politics.
A reader of the Marin Lawyer might wonder why a book about the history of bourbon is relevant to a modern lawyer. The first paragraph of the book explains:
Bourbon and law might seem, to the casual observer, to be connected only in negative ways: Prohibition, illegal stills, and organized crime. While nostalgic in many respects, those connections focus on lawlessness. Lawlessness, however, is the mere tip of the proverbial iceberg for bourbon—the real history of bourbon, hidden beneath the surface, is the foundation of American commercial law and its relation to American history as a whole. Indeed, bourbon justice tells the history of America through the development of commercial laws, guiding our nation from an often reckless laissez-faire mentality, through the growing pains of industrialization, past the overcorrection of Prohibition, and into the tranquility of finally become a nation of laws.
I was struck by the parallels that might be drawn between the laws that developed around bourbon and the struggles of the recently de-criminalized marijuana industry in California. The modern marijuana industry seems to face some of the same issues that the bourbon industry did post-Prohibition. The trademark, advertising, sales and intellectual property fights seem to be very similar: How do you tax it? How do you advertise it? How do you control and protect proprietary blends and strains? The bourbon industry has litigated these issues for decades.
As I read the sections of the book that described the often fictional storytelling involved in selling bourbon to the consumer, I wondered if in 50 years the marijuana industry will use the same tactics to sell their products. For instance, will marijuana grown by massive agricultural concerns in warehouses or factory farms seek to identify their product with outlaw days and the emerald triangle like bourbon does with rural Kentucky:
Assumed names might also be used to create an impression that a particular brand of bourbon is made in the backwoods of Kentucky or at least somewhere other than a large-scale factory distillery. Buffalo Trace, for example, is a large factory distillery…
…However, the only brand label that admits to being distilled at the Buffalo Trace Distillery is the Buffalo Trace brand. Other brands claim on their respective labels to be distilled at the Old Rip Van Winkle Distillery, for instance, or W.L. Weller and Sons or Blanton Distilling Company. Those places only exist on paper.
Given that bourbon is more of a factory produced commodity than the distillers would like the consuming public to know, the book spends time discussing the impact on bourbon production of labor laws, personal injury laws, and ironically (since bourbon is medicinal after all!) medical purity laws. Perhaps you can tell that I really enjoyed this book. It is a fun read but it is chock full of legal case citations if you want to fall down the rabbit hole and dive into the unique facts of bourbon litigation. I highly recommend it to those interested in bourbon or justice. I tend to enjoy both subjects. After reading it, I do wish the line between puffery and false advertising was drawn a little differently because the tale the label tells isn’t necessarily going to be repeated by the drink inside the bottle.
Charles Dresow is a partner at Ragghianti Freitas LLP and is the MCBA President for 2019. His practice focuses on representing those accused of crimes.