State drops prohibition against ‘Bad Elf’ beer

Saturday, November 12, 2005

HARTFORD, Conn. — Despite a favorable ruling by the state, a distributor says Connecticut residents may not be able to toast to their health this holiday season with a bottle of Seriously Bad Elf ale.

The state Department of Consumer Protection announced on Nov. 8 that it would approve the sale of Seriously Bad Elf in Connecticut despite earlier concerns that the beer's label might appeal to children.

The department determined that although state regulations bar alcohol advertising with images that might entice kids, including images associated with Santa Claus, the regulations do not apply to beer labels.

The state had notified Shelton Brothers, the beer's distributor in Belchertown, Mass., that it would reject the labels for Seriously Bad Elf and one for Warm Welcome ale based on the state regulation.

The label for Seriously Bad Elf shows a malevolent elf with a slingshot firing Christmas ornaments at Santa's sleigh as it flies overhead. Warm Welcome's label depicts Santa coming down a chimney into a lit fireplace.

The problem with getting Seriously Bad Elf on store shelves in time for Christmas, Will Shelton says, is that beer distribution in Connecticut is a two-stage process, and that getting the state's Nov. 8 approval just completed part one of that process.

He told the First Amendment Center Online today that Shelton Brothers had requested a waiver from the state that would allow the beer to be sold in December. If the waiver is not granted, the earliest the beer could be sold in the state would be January, he said.

“Most of the Christmas beer in other states was sold in October,” Shelton said. “We start receiving orders for Christmas beer as early as August.”

On its Web site, Shelton Brothers took a whimsical view of its difficulty marketing the beer in Connecticut.

“In the case of state of Connecticut vs. Santa Claus, the defendant pleads bewildered. 'I never meant to hurt anybody,' an obviously shaken Claus told reporters after posting bail at a Hartford-area police station,” the Web site says.

“Claus, also known to authorities as Kris Kringle and Father Christmas, was taken into custody after alert analysts at the Connecticut Department of Consumer Protection noticed his likeness on the label for an imported English ale known as Seriously Bad Elf.”

At a compliance hearing before a state liquor commissioner last month, a lawyer for the distributor argued the state would be violating the distributor's free-speech rights by banning the labels. Protecting Santa Claus also violates the Constitution's establishment clause, which prohibits government endorsement or disapproval of religion, she argued.

The state Department of Consumer Protection ordered a formal hearing for Nov. 22 before the state Liquor Control Commission.

On Nov. 8, the hearing was canceled and a ruling was issued in favor of Shelton Brothers.

“The constitutional issue did not come into play here,” said Edwin Rodriguez, the state's consumer protection commissioner. “The courts have given the states total jurisdiction on how it regulates liquor within its borders. But our regulation specifically exempts labels.”

Dan Shelton said he was almost disappointed by the Nov. 8 ruling.

“They took the easy way out,” he said. “There is so much wrong with that regulation that (the lawyers) were looking forward to attacking the whole thing in court.”

First Amendment Center Online intern Laura Breslin contributed to this report.

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