In this undated image provided by Shelton Brothers, a label for Seriosly Bad Elf is shown. The Connecticut state Liquor Control Commission has notified Shelton Brothers distributors that it will not allow the sale of Seriously Bad Elf , a British import, in Connecticut on the grounds that the label might appeal to children. The state has wide ranging discretion to regulate the sales of alchohol according to state Attorney General Richard Blumenthal. (AP Photo/Shelton Brothers)
By PAT EATON-ROBB, Associated Press Writer
Sat Oct 29, 2:58 AM ET
HARTFORD, Conn. - A constitutional battle is brewing over a holiday beer that state officials are trying to ban because they say its label might entice children to drink.
The state believes it would be really awful for kids to see the label on the British import Seriously Bad Elf.
It shows a mean-looking elf with a slingshot firing Christmas ornaments at Santa's sleigh as it flies overhead.
State liquor regulations bar alcohol advertising with images that might appeal to children. The regulations specifically mention Santa.
"There are certain symbols and images that appeal more strongly to children and this regulation includes the most obvious among them," Attorney General Richard Blumenthal said. "The state has wide discretion to regulate the sales of alcohol."
The state Liquor Control Division notified Massachusetts-based Shelton Brothers distributors that it was rejecting its application to sell the beer, a bitter winter ale brewed at the Ridgeway Brewery in England.
Dan Shelton cried foul. After all, his company had no such problems when it sold Bad Elf and Very Bad Elf in previous years. It sells the beer in 30 other states and none have complained.
"We even had a beer called Santa's Butt last year," Shelton said. "They didn't notice Santa's Butt, but they notice this one. How can you miss that big red thing? Minors are not going to be looking to buy beer because Santa Claus is on the label."
Messages seeking comment were left with the Department of Consumer Protection, which oversees the Liquor Control Division.
Federal law limits what can be printed on beer labels but does not address marketing to children. Each state sets its own laws and, once a beer label is approved federally, it still needs state approval.
Most states limit alcohol marketing to minors and many prohibit the use of images such as Santa Claus and the Easter Bunny, according to a 2003 report by the Center on Alcohol Marketing and Youth at Georgetown University.
Two industry groups, the Beer Institute and the Distilled Spirits Council of the United States, have adopted voluntary codes of conduct prohibiting the use of Santa Claus in alcohol marketing.
Shelton has enlisted the help of the American Civil Liberties Union of Connecticut and demanded a hearing before the Liquor Control Commission.
At that hearing this week, ACLU attorney Annette Lamoreaux argued that the regulation has serious constitutional flaws.
Not only does it violate Shelton's free speech rights, she said, but protecting Santa Claus is a violation of the Constitution's establishment clause, which prohibits government endorsement or disapproval of religion.
She also cited a decision in another beer-label case, Bad Frog vs. New York. A court ruled that the potential for an image to attract a child is not reason enough to ban it from a beer bottle because there are already laws against selling beer to children.
Not only that, Shelton said, but you can hardly make out Santa in his sleigh on the beer label.
"The state of Connecticut must not have enough to think about," said Gary A. Lippincott, the Massachusetts artist responsible for the image. "The funny thing is that it is really tame compared to what they originally wanted. I believe the original idea started with him roasting a reindeer on a spit. I wonder how that would have gone over."
The state has also indicated that it will not allow Shelton Brothers to sell Warm Welcome Nut Brown Ale, which also has a picture of Santa Claus on the label.
Lippincott, who has illustrated children's books, said he was not thinking of kids when he drew the seriously bad elf. He said many small breweries try to stand out by making their labels humorous or interesting.
But studies have shown children can be affected by alcohol advertising, said George Hacker, the director of the Alcohol Policies Project at the Center for Science in the Public Interest.
A 1996 study showed that more kids recognized the Budweiser Frogs than Tony the Tiger or Smokey the Bear.
"This kind of advertising has great appeal to young people, but the line where the states and the government can restrict that speech is very squishy," Hacker said.
Lamoreaux said she's confident the Constitution is on Shelton's side, and they would win any court battle. But she said they are not looking for the state to revamp its liquor regulations.
"Mr. Shelton just wants to sell his beer," she said. "If I were them, I'd just let Mr. Shelton sell his beer."
Shelton is awaiting the commission's formal decision.