The makers of Utah’s Polygamy Porter lost a bid Wednesday to sell their beer in North Carolina, but they may have found an ally that trumps Tar Heel State statutes: the U.S. Constitution.
Jon Lee, brewmaster and co-chief operating officer of Squatters and Wasatch beers, said he has been contacted by several lawyers who argue that North Carolina’s ban on their product infringes on free speech and the First Amendment.
“They say it’s a winnable case,” Lee said Wednesday, shortly after the North Carolina liquor commission decided to deny the Utah appeal and keep Polygamy Porter from being sold in the state.
“At this point, we are still weighing our options," Lee said, “We’re not sure the next step. We’ll have to see if [a legal challenge] is worthwhile.”
A request to sell Wasatch Brewery’s Polygamy Porter in North Carolina was rejected in mid-June, because the name and the label promote an unlawful activity.
“We’re still a bit stunned that ours was denied,” said Lee.
While it’s not Wasatch’s top-selling beer, Polygamy Porter always has been popular, largely because of the branding and funny name.
North Carolina is one of 17 states, including Utah, that controls alcohol sales.
Lee said North Carolina’s liquor policy "lacks consistency” and “is arbitrary” because the state has approved several beer labels that are more sexual in nature than Polygamy Porter, such as Pimp and Flight of the Pimp. Other beers have references to drug use, such as Baked Good and Pineapple Space Cake.
Lee also pointed to a 2015 case in which Michigan banned a Belgian-style IPA, called Raging Bitch. The beer, produced by Flying Dog Brewery, was “detrimental to the health, safety and welfare of the general public," according to the state.
However, a federal court in Michigan ruled in favor of the brewery, saying the ban violated the brewery’s right to free speech.
Wasatch applied to North Carolina because it wants to sell its Polygamy Porter on tap at the Collaboratory, in Asheville. The new brewery and restaurant, owned by Wasatch’s parent company — the CANarchy Craft Brewery Collective — already serves Wasatch Apricot Hefeweizen and Squatters’ Hop Rising Double IPA.
North Carolina law bars certain statements in alcohol advertising and labels. The specific clause affecting the Polygamy Porter request bans any label that “depicts the use of alcoholic beverages in a scene that is determined by the commission to be undignified, immodest, or in bad taste."
Polygamy Porter launched in Utah in 2001 and now is sold in 19 states. None of them has had problems with the name or the label, which features a drawing of a man and two women lounging in the nude. Arms and fabric were strategically drawn to cover private parts.
While polygamy was a common practice among early members of The Church of Jesus Christ of Latter-day Saints, the Utah-based faith officially abandoned polygamy in the late 19th century as a condition of statehood and now excommunicates members found practicing it.