[1994/oagheade.htm]

OAG 94-50

July 18, 1994

Mr. Morton Siegel

Siegel, Moses, Schoenstadt & Webster

10 East Huron Street

Chicago, Illinois 60611-2706

Re: Alcoholic Content Label - Molson Beer

Dear Mr. Siegel:

This letter is written in response to your opinion request concerning KRS 244.520 and the matter of placing the alcoholic content of beer on the label of the beverage.

You have asked for an opinion on the following question:

Are the words and numerals regarding the alcoholic content of this label "adequately explained" within the meaning of KRS 244.520 so that this malt beverage product with this label can be marketed in Kentucky?

You have provided this office with a copy of the proposed label which shows the alcoholic content of the beverage to be "5.6% ALC./VOL.". The label also contains wording which describes and explains the brewing process.

KRS 244.520 specifically states as follows:

No licensee shall issue, publish, post or cause to be issued, published or posted any advertisement or label of malt beverage intended for sale in this state, which refers in any manner to the alcoholic strength of the malt beverage manufactured, sold or distributed by the licensee; use in any advertisement or label words or numerals likely to be considered a statement of alcoholic content, unless the words or numerals are adequately explained; or purchase, transport, sell or distribute any malt beverage advertised or labeled contrary to the provisions of this section.

The statute clearly states in its first clause that a licensee cannot place on its alcoholic beverage labels any advertisement that refers "...to the alcoholic strength of the malt beverage ..." The purpose of this prohibition is to prevent strength wars among brewers who might attempt to make outlandish claims about how strong their beer is in comparison to a competitor. The constitutional validity of such a statute has been recently addressed in the case of ADOLPH COORS COMPANY vs. BENTSEN, 2F.3d 355 (10th Cir. 1993). COORS upheld the constitutionality of such statutes as it relates to regulation of advertisements concerning the "strength" of malt beverages. However, the Court in COORS also considered the validity of a federal statute that provides that beer labels containing "statements of, or statements likely to be considered as statements of, alcoholic content of malt beverages are prohibited ..." 27 U.S.C. � 205(e)(2). It was argued that the statute was intended to prevent strength wars among brewers. The court held that the prohibition on placing alcoholic content labels on malt beverages contravenes the first amendment as an unwarranted intrusion on commercial speech.

In contrast, as you have pointed out in your letter, the second clause in KRS 244.520 does not prohibit or totally ban the inclusion of the alcoholic content on the labels of malt beverages sold in Kentucky if "... the words or numerals are adequately explained;" clearly the constitutional concern expressed in COORS relative to commercial speech is not impacted by the Kentucky law because the statute does not contain an out-right ban on labels which set forth the alcoholic content if adequately explained.

In view of this, the only issue to address is your question concerning the adequacy of the explanation of the alcoholic content when one reads the label on the malt beverage bottle. As previously noted, the label reads "5.6% ALC./VOL." The label does not contain any additional narrative statement explaining this label; however, the label does generally describe the brewing process but this description does not speak to the issue of explaining the alcoholic content of the beverage. Given these facts, one must decide if the alcoholic content label of "5.6% ALC./VOL.", standing alone, adequately explains its meaning to the consumer.

The issue you raise is a question of first impression under Kentucky law. We have found no case law which answers your question. As a result, the Courts may ultimately have to decide this matter. However, it is the opinion of the Attorney General that the alcoholic content label as previously set forth herein adequately explains itself. Explanation follows.

It is apparent that the alcoholic content label is placed on the bottle for the purpose of advising the consumer of the exact alcoholic content of the malt beverage. The label does not make any false or misleading statements or claims concerning the "strength" of the beverage in comparison to other malt beverages. It (the label) merely states a fact concerning the alcoholic content of the beverage. The consumer can use this fact to decide whether or not to purchase the malt beverage with the advertised alcoholic content. With this information, the consumer may choose to purchase this particular beverage or another malt beverage with a different alcoholic content. The publication of the alcoholic content on the label serves to educate and inform the consuming public so that they can make a more informed decision concerning the alcoholic beverage which will be consumed. As a factual statement of alcoholic content it is the opinion of the Attorney General that the label adequately explains itself and that use of such label is permissible under the statute, KRS 244.520.

Sincerely,

Chris Gorman

Attorney General

Brent L. Caldwell

Deputy Attorney General