Law – Page 24 – A Good Beer Blog

Canadian Conservatives Are My Kind Of Conservative

Political culture is a weird thing. It doesn’t translate well from nation to nation and leaving the words associated with themselves rather meaningless. Conservative or liberal? Anarchist or patriot? Who know what any of this stuff means? Yet, there are moments when you know that being a Canadian politician means there is one thing you can’t disapprove: beer.

Opposition Leader Tim Hudak says he won’t rule out bringing back “buck a beer” if he becomes premier this fall. “Many folks, myself included, look forward to that $24 two-four on the May 24 weekend,” Hudak told reporters on Monday. “That is now something that has passed under Dalton McGuinty.” The Progressive Conservatives are yet to release their official election platform, but Hudak says he’s committed to reducing the cost of living – and that could include beer prices. “I do hear from people who say ‘Come on, I can’t even get a buck a beer in this province thanks to Dalton McGuinty’s policies,” Hudak said.

Blame the government for the price of beer? Well, you can when the government controls the minimum retail price through a Crown owned corporation and making “recommendations”.Still, no social conservatism that tells us beer is bad… and not even fiscal libertarian conservatism telling us that the LCBO needs to be broken up and privatized. No, it’s the progressives v. the liberals up here for control of the centre… every election time… time after time. Will they actually lower the minimum price if they don’t get in? Hudack says: “We’ll have more to say in the time ahead about some of the ideas we are hearing from Ontario families”. I look forward to what my ten year old advises on this point.

Ontario: Fryfogel’s Tavern, Near New Hamburg, Perth Co.

Ever since I opened my copy of Julia Robert’s In Mixed Company, a history of the taverns of Upper Canada from the 1780s to the 1850s, I have wondered how many of our Upper Canadian pioneer taverns there might be left out there. Well, I passed one today – the Fryfogel Tavern – and thought I would get out of the car and have a look around.

Fryfogel’s Tavern, more graciously called an inn on the official road side sign, has sat by the road between Kitchener and Goderich for 166 years, though it has not apparently acted as a tavern for most of that time. You will recall from last summer’s posts on Ontario’s history that the land to the west of Lake Ontario starts opening up and breweries start opening up in the 1820s and 30s. The Canada Company’s plan of settlement of the area is discussed here and the way of life at the time of 1830s settlement of the district can be found in this letter from an original settler, John Stewart. Each source mentions Mr Fryfogle or Fryfogel when his tavern was a log cabin. Roberts indicates that the later 1840s form of the tavern is in the Georgian style and that this was the template for taverns for much of the pre-Confederation period:

The Georgian style worked well to project an image of prosperity and comfort, particularly in the practical sense that it enabled different activities to go on in the house at the same time.

Owned by the county’s historical foundation, it well kept but something of a shame that it is not in use though that seems to be in the plans. Next to it to the west sits the site of the 1828 cabin that preceded it as the home of the family. To the east runs Tavern Brook. The original owners are buried across the road.

Albany Ale: What Hops Would They Have Used?

sen1835 Remember Albany ale? Last spring, I found a number of references to beer being shipped around the eastern seaboard from Newfoundland to New Orleans as well as references to it being sold in Texas and even California. Not sure what it was but there was plenty of evidence that it was something.

The other day I found something particularly helpful. In 1835, the Senate of the State of New York received the Report of the Select Committee… on the Memorial of Sundry Inhabitants of the City of Albany, in Regard to the Manufacture of Beer. Forty pages long, the Report consists of answers by brewers given in response to six questions posed by Senators intended to discover whether the brewers of Albany were brewing impure beer. Question 3 gets to the point:

3. Have coculus indicus, nux vomica, opium, laurel leaves, copperas, alum, sulphuric acid, salt of steel, aloes, capsicum, sulphate of iron, or copperas, or any other deleterious or poisonous drug or compound, or any or either of them, or any extract or essential property thereof, been, at any time, or in any quantity, directly or indirectly infused, mixed, put or used in beer, ale or porter, either when being manufactured or when preparing for market? If aye, at what time, in what quantities, and by whom?

Yikes. Yiks, too. Happy to report, however, the answers were a complete and fairly convincing denial of all charges, charges no doubt trumped up by some downstate faction. But in giving that answer, the brewers, brewery owners and staff give a lot of information about what was going on with brewing in and around the Hudson Valley at that time. I will return to this text on other topics but today, I want to look at what they say about hops and where that can lead us. Here are some of the comments:

– James D. Gardner of Vassar and Co., Poughkeepsie stated: “I do not know the cause of that flavor, which gives to some beer the taste of aloes, unless it is owing to the use of strong hops which may have become damaged by packing, before sufficiently cured, or to unskilfulness in the operator, or to both combined.”

– James Wallace of the firm of J+U Wallace, Troy, NY reported: “There is a great variety in the flavor of hops: some have a strong, others a more delicate flavor, which readily accounts for the different flavors perceptible in the ales of the same establishment.”

– Thomas Read of Thom. Read and Co., Troy NY confirms he used 2.5 to 5 pounds of hops to a barrel and that they looked for the palest bales of hops to use in their pale ale.

What does that tell us? Well, no one describes varieties of hops even if they come in different colours, different degrees of curing and damage as well as different degrees of delicacy. We can fall into a trap thinking people in the past were not as perceptive as we are. Well, it is clear the brewers are looking for differences in hop characteristics with a professional eye but do not see varieties or breeds of hops as something available to them.

What were these hops? It is reasonable to suggest they were New York state hops. In Volume 50 of the American Journal of Pharmacy from 1877, there is an useful article setting out the importance of hop industry in central NY in the mid-1800s. In 1860, it states, each of four countries of central NY including Otsego produced more hops than all hops produced in the USA outside of New York state. Two varieties are mentioned by the pharmacists: “large and small cluster.” In another report, this time the 1860 Report of New York State Cheese Manufacturers’ Association, a trip to Otsego County is describe in which the hop plantings in every village are estimated. We are told at page 150 that at Richfield, about 75 miles west of Albany two varieties were grown:

Messrs. Allen & Hinds, the leading hop merchants of’ the town, informed us that the past winter had been unfavorable to hop plantations in this section, and many yards had been badly winter-killed, more especially the older yards. There had been greater losses from this cause than in any previous year, but a considerable number of new plantations had been set, and it was believed the new yards would more than supply the place of those winter-killed. Two varieties of the hop are generally cultivated in town, the Pompey and Cluster. The Golding hop of England had been tried but did not succeed well, being liable to rust . The Pompey is a large coarse variety, a vigorous grower, but inferior to the Cluster in strength and flavor, and does not keep its color so well as the latter variety.

While there is still a village of Pompey and even a modern day effort in the re-establishment of the central NY of the hop industry there, we are unfamiliar with that strain. We do know about Cluster, however. Cluster is still with us, often described as an old American cultivar which is, notably, a hybrid of Dutch strains and wild indigenous ones. Hmm… where did the Dutch meet the wild in the US? The Albany area, of course.

There is more to know about Cluster and the need to more closely locate it in the early 1800s in an Albany brewer’s log book but for now suffice it to say that when the brewers of Albany ale were talking about hops they were likely talking about the finest hops available locally, Cluster.

Is It True? Has Vermonster Been Saved??

There seems to be some news happening this suppertime around the Vermonster saga-ette with news today from the website of Rock Art Brewery and via their Twitter account. Vermont Public Radio seems to have a tidbit more than I am seeing elsewhere on the why and the wherefore of the outcome… even if they get the name of the beer wrong:

Vermontster president Matt Nadeau is cautious about spelling out the agreement before getting instructions from his attorney. But he will say that Monster has agreed to withdraw its cease and desist letter, provided that Vermontster doesn’t try to break in to the ‘energy drink’ market.

If that is true, what a come down for the litigious Hansens Beverage Company, taking a kick in the teeth and putting a shadow on its brands only to force Rock Art into submitting to agree… to not do what it never intended to do. Brilliant. And all of a sudden little Rock Art is well known in craft brewing circles. Bonus.

More On That US Trademark Law Facing Vermonster

You know, it’s fun to learn new things. Today, for example, I learned how to use the search tool at the United States Patent and Trademark Office. A great example of open government, you can even see the emails on the Office’s file listed as Notation to File – thrill to the bureaucratic reality, baby. Why’d I do it? Well, because Hansen Beverage Company, the makers of a jittery soda pop called Monster, has issued a press release about their reasons for objecting to the application filed by Rock Art Brewery to trademark their beer called The Vermonster. In part, they state:

In order to protect Hansen’s valuable Monster Energy® trademarks, Hansen is legally obliged to, and routinely sends, “cease and desist” letters to, and where appropriate, pursues litigation against, entities and persons who use or attempt to register similar trademarks for products that are similar or related to Monster Energy® products. A “cease and desist” letter was sent to Rock Art Brewery on September 4, 2009… Hansen has not, and does not, target or single out one company over any other, nor distinguish between big or small companies or individuals when enforcing our trademarks.

To be fair to Hansen, that is true. For example, when one looks at the registration by Coca-cola of a drink called “Monster Refreshment” you can see that Hansen does object to others and is not afraid to take on companies far bigger than they are. Hansen actually seems to be involved with a whopping ninety-nine trial or appeal files of one sort or another at the moment. So, they are not picking on Rock Art – though what I see are other firms using “monster” somehow and not just a word, as with Vermonster, containing “monster” or some a step further. What would the do if faced with a “-onster” word like “Sue-me-nonster” beer? I have no idea.

Sometimes trademark applications just go away as when the Brooklyn Brewery abandoned its trademark application for its Monster Ale barley wine in 2005. No idea why they did that. They seem to have all their other brands in he system including the as yet unmade and somewhat mysterious Local 3. Sometimes they are resolved as when Hansen bought the rights to a beer brand called Flathead Lake Monster in 2006… though it doesn’t say for how much. Actually, Flathead Lake Monster Ale seems to have gone away about the same time. There was a Flathead Lake Brewery in 2008 but that seems to have gone, too.

But one trademark didn’t seem to get protected by Hansen. The one for Monster Malt Liquor. It was deemed abandoned by the Patent and Trademark Office who sent Hansen’s lawyer this Notice of Abandonment on 20 July 2009. See, Hansen failed to file a document called a “Statement of Use” even though they were given three extensions to make that filing. Because, presumable, they did “use” the name by making a beer called “Monster.” Or, I think, make any beer at all for that matter. I guess in that respect beer and jittery soda pop are very different things.

Will Hansen’s abandonment of their one intended beer trademark make a difference? Will it matter to their argument that Vermonster causes confusion when it is pointed out that they could not put even a malt liquor on store shelves? I have no idea – but you sorta think it should, right? Interestingly, another factor that might affect the outcome is that soda and beer are in the same trademark goods and services category called “light beverages” which is separate from both wine (listed under “alcoholic beverages”) and coffee (listed under “staples”). A quirk? Not important? Who knows?

Meanwhile, you know things are getting more jittery than usual at Hansen HQ as Monster Energy may have stopped tweeting. the push back and the boycott grow. Because the consumer doesn’t need to wait for a ruling from the Patent and Trademark Office, right?

If “Vermonster” Is Confusing – Isn’t “Monster” Worse?

Much is being made of a legal claim being brought against Rock Art, a small Vermont brewer, who makes “Vermonster” beer by a premium soda pop maker whose brands include “Monster” energy pop for confusing the brand – especially since the claim is being made in the name of the soda company’s plans to enter into the beer market. But not so much is being made on this point noted by one Green Mountain State publication:

Rock Art isn’t the only Vermonster out there. Ben & Jerry’s has long used the name for a massive tub of ice cream available at its shops. A spokeswoman for the company said she was not aware of any trademark issues with the name. “Vermonster” is also the name of a series of truck rallies in Bradford. Brooklyn Brewing Co. makes a barley wine called “Monster Ale.” A representative to the company declined to discuss whether Hansen had challenged its use of the name.

OK, that is a few points but you see my point, right. Good old Brooklyn Beer has had a beer called “Monster” on the shelf for quite a number of years. I have one in my stash right now. Simmering in its own wickedness, no doubt. There are others, too. Will they all get sued? The Bee-to-the-Ay lists 34 monstrous craft beers on the market already. What if all craft brewers shared in the idea and put out their own Monster and “-onster” branded beers, too?

We are only at the stage of the legal letter sent, we are told, by the specialist intellectual property law firm Knobb, Martens, Olsen & Bear. Which is good. There is still time to think of the big picture. It may well be that the negative reaction to the note may well lead the Hansen Beverage Company to reconsider their strategy. They look like they want to get along and have a happy name in the marketplace. Who doesn’t? Hard to overcome bad press.

Our Collective Family Record Of Slavery

I have the TV on in the mornings. It drones on and if I am lucky and the kids sleep in past 4:45 am, I get to pay half-attention to the CBS Morning Show to learn about all the real news. And this morning there was a short piece about the genealogy of Michelle Obama which told about the five generations from slavery to the White House:

She began working on Michelle Obama’s roots at the behest of the Times before President Barack Obama’s inauguration. Smolenyak said her mother, like Michelle Obama’s mother, Marian Robinson, carried the surname Shields, and an “instant affinity” pushed her interest. The first lady’s ancestors lived across the South and Midwest, and many were part of the Great Migration that saw blacks leave the South for the industrialized North. It was the 6-year-old slave Melvinia Shields, bequeathed in her master’s will and later sold for $475, who tugged at the genealogist’s heartstrings. “It’s still jarring to see dollar signs associated with human beings,” said Smolenyak.

In my work I am bumping into history more and more and find the specifics of personal history and who was related to who the most interesting stuff. A few months ago, I asked myself who was the last slave in my town. I didn’t really answer the question but found some information – especially the story of the man who seemingly incongruously fought at Sackets in red during the War of 1812 even as had also been brought to Ontario at the end of the American Revolution as a slave to Loyalists. Makes me wonder if any were on the ships from New York City in 1783-84. There were plenty of possibilities in those days… possibly. I still need to find the 1812 soldier’s name but it also reminded me of the prof who taught slavery in first year property class to illustrate the principles in a way that stuck in the mind. Nothing like a children listed in a slave sale advertisement to bring a point home. Now I wonder who the last slave sold in my town might have been. And where was the sale held? I had no idea they were curious about the same questions in Largs.

Warning: Your Freebie Beer Blogging Ways Are Over!

A few weeks ago, a wiggling waggy hand rose above the crowd pointing out that there was uncertainty as to who was dabbling in beer blogging in relation to matters in which the blogger had a financial interest. Melissa Cole admitted that there were doubts even about her own writing and that it was all not quite on. It has all devolved into a well deserved bout of slappy heed [Ed.: in the comments] over calling out but not calling out yet the point is still a reasonable one… as is Jeff’s counterpoint… but not Pete’s… Pete’s contribution is not helping things at all.

Well, as the New York Times tells us things are now more serious than whether one or another or all of us are cool with… or is it cool towards… such practices. Bigger than even Pete Brown (as sophomorically illustrated¹) himself, the UK’s – if not the language’s – real top beer writer. See, the law is now involved as the United States Federal Trade Commission has issued a revision to its “Guides Concerning the Use of Endorsements and Testimonials in Advertising” (warning: big honking burly .pdf) which states in a number of ways that blogging has now gone big time and we know so because the line between comment and endorsement, opinion and advertising has gotten blurred. For instance, the FTC states at page 14 and 15:

The Commission recognizes that because the advertiser does not disseminate the endorsements made using these new consumer-generated media, it does not have complete control over the contents of those statements. Nonetheless, if the advertiser initiated the process that led to these endorsements being made – e.g., by providing products to well-known bloggers or to endorsers enrolled in word of mouth marketing programs – it potentially is liable for misleading statements made by those consumers.

… and further at 47 to 48:

The Commission acknowledges that bloggers may be subject to different disclosure requirements than reviewers in traditional media. In general, under usual circumstances, the Commission does not consider reviews published in traditional media (i.e., where a newspaper, magazine, or television or radio station with independent editorial responsibility assigns an employee to review various products or services as part of his or her official duties, and then publishes those reviews) to be sponsored advertising messages. Accordingly, such reviews are not “endorsements” within the meaning of the Guides. Under these circumstances, the Commission believes, knowing whether the media entity that published the review paid for the item in question would not affect the weight consumers give to the reviewer’s statements. Of course, this view could be different if the reviewer were receiving a benefit directly from the manufacturer (or its agent). In contrast, if a blogger’s statement on his personal blog or elsewhere (e.g., the site of an online retailer of electronic products) qualifies as an “endorsement” – i.e., as a sponsored
message – due to the blogger’s relationship with the advertiser or the value of the merchandise he has received and has been asked to review by that advertiser, knowing these facts might affect the weight consumers give to his review.

So, while the FTC indicates that it will not go after the bloggers directly, it will go after the advertisers who use new media to get their message out. What will this mean? It may put a chill on ads, samples and…frankly… the goodies. And what the hell point is there blogging if one never gets the goodies??? Well, for those quasi-bloggers who are really professional writers (you know, the book writers) slumming with the cool kids, it will mean absolutely nothing because their revenue is through indirect advertising not the entirely more wholesome and less problematic direct moo-lah stream. Me, I actually get very few samples through the maple wall that is the US-Canadian border and the cash ads mostly come (however oddly) from other nations. But for the poor US based semi-pro beer blogger just looking for a little reason to go on, well, this may be the kick in the pants they don’t really need. So share a silent moment, if you would, for the blogger looking for that one little break, that something in return. It may just have become that bit less likely to arrive in the mail.

One last thing. I do think it’s great that the law is actually addressing new media (even if blogging was cool seven years ago and starting going lame about three years ago) but is this at all a likely outcome in an advertising model where a scurrying pack of small operators get paid peanuts to send out a viral message?

In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.

No, me neither. Ain’t going to happen.

¹[Ed.: lesson – don’t blog with an eleven year old goading you on to make the cartoon look sillier. Sorry Pete. Really. Sorry. Just think how boring this post would be without your input… err… participation… umm… objectification.]

BBADD: Beer Bloggers Against Drunk Driving

I was thinking the other day about scare-dee cats. While good beer for fans is fun, easy, relaxing and genial for others it can be another nail in the coffin of the moral and secure society we all grew up with or supposedly wished we did. There is something about this dichotomy that makes no sense to me. Craft beer should be making alliances with parts of society which would enhance its vision. For some that is the swank or even the snob but I don’t buy that either. I go to a fine restaurant about six times a year… maybe. Pinning craft beer’s star to fine food is niche and excludes. Similarly being pals with brewers or considering them rock stars is the slightly embarrassing refuge of needy geeks. Not to mention a bit of a sidetrack.

There are bigger issues which neither embarrass or exclude. One of the biggest problems related to drinking is, of course, driving. And drunk driving is primarily a problem caused by driving. No car, no crime. Lew posted about this today in relation to New Jersey’s Flying Fish’s Exit Series beers. When I pointed out that the state’s executive director of MADD had changed her view, Lew commented “Craft brewers and craft beer drinkers do NOT take this seriously enough.”

That was my moment. I was all ready to blast craft brewers for their inaction on the question when I thought about what Lew wrote a bit more. It’s true – craft beer drinkers do not take drunk driving seriously enough either. So we will from now on. By being BBADD. I am going to think about this a bit more and suggest that it is the role of beer fans to promote safe drinking, to present the responsible beer geek as the guy who takes pal’s keys or takes the cab or the bus… or acts as designated driver. We need to ask craft brewers to do the same. For me, this is a no-brainer. Craft brewers have the opportunity to be fight drunk driving and place themselves in the lead of the cause. Social responsibility in the cause could develop as a distinguishing aspect of being a craft brewer and a craft brew fan. There might also be an alliance MADD would welcome one day to confirm they are not the new dry but truly anti-stupid-death. But until that day comes, we can be BBADD to prime the pump.

So, spread the word. Paste the logo at your website. And I know it’s a bad BBADD logo up there so if anyone can make it better or, you know, bad ass or sick or whatever fill you boots. Write a post. Tell a friend. However you relate to beer, make sure it is BBADD.

But Isn’t Taxing Beer The Third Oldest Profession?

It is interesting to follow beer fans in different jurisdictions in the US and the UK react to various plans to use beer as one way to cope with the global economic crisis. The British Beer and Pub Association backed by CAMRA and many brewers is running the Axe the Beer Tax campaign. States like Illinois are thinking about making changes while others like Wisconsin may leave them where they have been for forty years. Jay points out that the US Federal tax might be tripled from 18 to 45 bucks a barrel but is that really stupid or just reality in an economic collapse? Just as it makes no sense when a certain sort of politician advocates for lower tax on business income to get small businesses started – no sense because they have no profits to call income at that stage – similarly, in a downturn, you can’t raise taxes on the limp sectors of the economy economic activity. So, if there are going to be taxes – and, yes, there are going to be taxes – why should beer be exempt?

Amy Mittleman in Brewing Battles points out that modern taxation policy was largely created in the mid-1860s to react to the nation’s financial need to pay for the Civil War. Beer and brewing was the chosen conduit for the taxation as was follow existing European models with the aim of creating the greatest level of consumption and therefore the greatest revenue stream. She also points out that the Federal beer excise tax on beer was set at 9 dollars a barrel almost six decades ago under the Truman administration. The tax level now in after inflation dollars has simply not kept up given $100 in 1952 is now worth $798.87. Fully adjusted taxes would make for about $72 per barrel of Federal excise today at Truman’s rates. Obama’s Senate pals are considering $45. Jay quotes Jeff Becker of the Beer Institute as part of his argument:

In 2008, members of the beer industry paid more than $41 billion in taxes at all levels of government and provided jobs to 1.9 million Americans. Any proposed tax increase would severely offset this important economic contribution.’”

Really? Any tax will threaten it? Will “wipe out an industry”? Seems like the socialists do pretty well on the beer consumption scale. Look at it this way. In these tough economic times there are two western economies which are sort of standing out. Norway is booming and the Obama administration is looking to dull old Canada for banking regulatory lessons. Despite cursing it as we do, both Norway and Canada beer fans live in cultures with a pay-as-you-go mentality with high beer taxation. When I was a kid in Nova Scotia the beer cases even had “includes health tax” written on them right next to “union made” right on top. We paid the tax and were quite happy when the ER visit didn’t turn into a question about could we afford it. We also had no choice. Unlike today in the UK, there was no cheap booze alternative undermining the marketplace in the Maritimes. Well, except in PEI… but that is another matter.

Look, I am not going to say “oh, goodie goodie goodie, a new tax” but at the end of the day isn’t there an effort going on to somehow roll back the clock to about 1857 when shock and dismay is expressed over taxes on beer even in a time of economic recession?