CA Jumps on the Alcohol Law Crazy Train with AB 2184
We enlightened souls here in California often like to mock and disparage other states for their strange, weird, anti-consumer and downright dumb alcohol-related laws. We here in CA seem to believe that our relatively liberal and rational alcohol laws are set apart upon a higher plane than those in more back-assed states. I've been quite the mocker myself.
Yet, California appears set to pass a law that defines silliness.
California Assembly Bill 2184, sponsored by Assembly-person Isadore Hall, lays down the conditions under which a celebrity brand owner or a winemaker or a brewer may may go about autographing bottles for consumers. The first thing that is interesting about this legislation is its very existence.
The California Department of Alcohol Beverage Control takes the position that if an activity isn't specifically allowed in the alcohol laws and regulations of California, then it is prohibited. When you think about the implications of this theory of commercial rights as expressed by the California ABC, you really do have to jump aboard the Crazy Train to really wrap your arms around its meaning.
But be that as it may, AB 2184 lays out the conditions under which such autographs by an alcohol producer may be offered to consumers. Why is anyone even concerned whether Joe the Winemaker appears in a store to autograph his bottles for consumers? Tied House Laws.
"Tied House" laws are at the very heart of all post-Prohibition alcohol regulaton. "Tied House" laws strive to assure that producers have no undue influence over retailers and certainly no ownership of retailers, lest they exert so much power over the retailer that said retailer may be forced to undertake dastardly marketing efforts on behalf of the influential producer that may in turn lead to circumstances that promote intemperance. The entire post-Prohibition alcohol regulatory structure, including a mandated three tier system in which producers of alcohol are required to sell their products only to wholesaler middlemen, is a hedge against the creation of retailers that are bound or tied to particular producers.
So, in California and other states, there are strict laws against producers giving "things of value" to sellers of alcohol. The California ABC believes that having a producers come into a retail store or restaurant to sign bottles is a "thing of value". As a result of this interpretation of signing a bottle in a store and as a result of there being nothing in California code that authorizes such a thing, it was determined that a law is required to define how an in-store autograph session may proceed.
Among the conditions n AB 2184 are:
1. Consumers may not be required to buy anything to get an autograph
2. Consumers may not be required to pay a fee to get anything autographed.
3. The store is required to pay for services necessary to carry out the autograph promotion.
These are not unreasonable conditions.
But consider what AB 2184 also says:
1. The retailer where the autographing will occur may advertise the event, but the brand owner who will be doing the autographing may not.
2. Autograph sessions my happen in a retail store, but not in a restaurant.
3. A brand owner may only come to a specific store twice per year to do an autograph session with consumers.
Besides the obvious 1st Amendment violations of the brand owner's right to commercial speech inherent in these latter conditions, there is the inexplicable restriction on having a brand owner go to a restaurant to sign autographs, while retail stores are OK. In addition, someone needs to explain to me why having the same brand owner come to a store twice in a year to autograph bottles is OK, but a third time somehow crosses the line into tied house problems. And finally, with apologies for being repetitious, why would a bill be authored that so obviously violates a brand owner's 1st Amendment right to commercial speech by prohibiting them from advertising the fact that they will be at Joe's Wine Store to autograph bottles?
The problems with AB 2184 stem from the same fundamental problem that haunt the collection of alcohol-related laws in nearly every state: A deep concern with using alcohol regulations to address problems and conditions that existed in 1910, rather than in 2012. It's not just alcohol LAWS that are archaic in nearly every state, it's the thinking and premises that lay at the foundation of alcohol laws in nearly every state that are archaic.
The idea, for example, that having a single celebrity come into a store 3 times a year to autograph bottles threatens the public order is nearly as absurd as the idea that allowing a winery in one state to sell wine directly to restaurant in another state threatens public order. These and so many other alcohol regulations not only serve fears that originated 100 years ago and no longer matter, but now only serve to protect the financial interests who have used 100 year old fears to game the system to their own economic interests.