Flying Dog can pursue damages in beer labeling case

Flying Dog Brewery is all the rage in Michigan.

Flying Dog Brewery has scored a victory in a six-year legal battle concerning the label for its Raging Bitch beer.

United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on Thursday that the Frederick-based brewery can pursue damages against individual members of the Michigan Liquor Control Commission for rejecting its 2009 application to register the beer's label in Michigan.

The commission based its decision, it said, on a section of the state code that allowed it to reject any beer label it deemed "detrimental to the health, safety or welfare of the general public.” 

In 2011, the commission reversed its decision and approved the label.

The Court of Appeals ruling means that the brewery can now seek compensation for the sales it lost during the two-year ban. 

Flying Dog CEO Jim Caruso would not say how much the brewery is seeking in damages but said the case was a matter of First Amendment principle. 

"We are pursuing this not for the [monetary] damages but because of the behavior," Caruso said in an interview. "This will set a precedent that I think will be useful nationwide."

According to court documents, Caruso told the Michigan commission at an April 2010 appeal hearing -- in which it was trying to get the beer approved for sale -- that Flying Dog chose the "edgy" name and label because it promoted the Flying Dog brand and because it reflected the nature of the Belgian yeast used to make the beer.

Defending the commission's original decision, one commissioner told Caruso that he had a responsibility to protect Michigan citizens.

"That product goes in front of all ages from children on up," Administrative Commissioner Patrick Gugliani said at the 2010 hearing. "They go to the supermarkets, they go the party stores with their parents and yes, although beers are in a certain area, they still walk by them."

But in its Thursday ruling, the appeals court rejected the "captive-audience" argument, saying, "There is no evidence that the co-mingling of candy and craft beer is a real occurrence, as opposed to a hypothetical fear." 

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