On Tuesday the 27th, the Brewers Association issued their press release announcing the launch of their new seal to designate independent brewers—the upside-down bottle graphic you’ve probably already seen—which has set off a number of reactions and have the beer folks talking. The BA is, of course, the trade organization which supports “small and independent” brewers, and among other things is well known for their definition of “craft” as it relates to beer and brewers. They now take that a big step further with the introduction of this seal.

Ironically, I was just having a conversation with someone a week or two ago who presented an idea similar to this—offering some sort of labeling “certification” to, basically, highlight independent craft brewers. While in principal I think this is and should be a valuable bit of protection and branding (it reminds me of the International Trappist Association that protects the Trappist name from non-Trappist entities and allows the Authentic Trappist Product logo on products), there were a number of practical and legal issues that came to mind which apply here.

First, go read the full press release and then let’s unpack some of the details.

Featuring an iconic beer bottle shape flipped upside down, the seal captures the spirit with which craft brewers have upended beer, while informing beer lovers they are choosing a beer from a brewery that is independently owned. These breweries run their businesses free of influence from other alcohol beverage companies which are not themselves craft brewers.

The notion of “upending beer” explains the weird choice to have an upside-down bottle in the logo. And right off the bat we start getting into the BA’s definition of “independent” which corresponds pretty tightly with their definition of “craft.”

The seal is available for use free of charge by any of the more than 5,300 small and independent American craft brewers that have a valid TTB Brewer’s Notice, meet the BA’s craft brewer definition, and sign a license agreement. It is available to both member and non-member breweries of the BA.

And then there’s this quote from BA president Bob Pease:

“Independent craft brewers continue to turn the beer industry on its head by putting community over corporation and beer before the bottom line. They continue to better beer and our country by going beyond just making the beverage. These small businesses give back to their backyard communities and support thousands of cities and towns across the U.S.,” said Bob Pease, president & CEO, Brewers Association.

See, I have a problem with these definitions of “independent.” By tying it to their trade definition of “craft” it seems to me to mire the term down with the same questions and hand-waving, and brings all the baggage surrounding their “craft” definition. My own (reasonable, in my opinion) definition of “independent” would not include being owned by a private equity investment firm—yet some breweries are, and still qualify as “craft” under BA guidelines.

Whatever. It’s a consumer logo that brewers can opt to put on their labels, or not. The issues that make this type of thing problematic from a practical standpoint that I see include:

• Education. Yes, the press release says this is part of an effort to educate consumers… but this logo is a bit vague and doesn’t tell the consumer much other than the beer is “independent.” No inclusion of a URL to visit, or a QR or other code to scan with a smartphone, for instance. Where will the consumer know to go to find out more information? Do they ask the store manager selling the beer? Will the BA provide supplementary materials for this? Is there a social media campaign, or even an email address consumers can interact with to learn more? If so, did the BA hire someone dedicated to this role?
• Interaction. This continues the same train of thought. Who at the BA fields questions from consumers, retailers, distributors, etc. about the Independent designation? Who’s managing the questions that come in about it via social media? These are resources that need to be developed and/or hired for, which isn’t free. Will there be outreach, ad campaigns, or something similar?
• Enforcement. It’s fine to have brewers sign a license agreement to use the logo seal, but who’s enforcing its use? What if an independent brewer thinks it’s a neat idea but just copies the logo from the website and slaps it on their labels? What if a “Big Brewer” does the same? Will the BA sue the respective brewers, or take other legal action? Who’s monitoring all of the labeling on all of the beers in the U.S. to ensure the seal isn’t being used improperly? Are they relying on people to inform them if a seal is spotted on a “bad” beer? Will they have someone investigating all of these claims?
• Protection. Also a corollary of enforcement. I see the BA has a trademark symbol on the logo seal, so I assume they have received trademark protection for it. (I did a very cursory search but frankly I don’t know enough about searching for design marks to confirm this.) Will the BA be aggressive in enforcing this trademark? Does that require a dedicated lawyer, or legal team? It’s free to download and use now, as long as a brewery signs the license agreement; what happens if the BA starts charging to use it? Would breweries using it suddenly get charged for it, or would they be grandfathered in?

To be clear and fair, these are just the headache-y types of questions that occurred to me when discussing this type of certification service, and that would give me pause about undertaking something like this. But then again I’m not an organization and tend to think in terms of the start-up issues.

But! I am very curious about the Protection and Enforcement questions that this all raises. Is the Brewers Association ready to go to court to protect the seal? What if AB InBev decides to test this, slaps the Independent seal on 10 Barrel or Wicked Weed bottles, and throws a few million dollars behind their legal team?

And how will the BA know and enforce if a 1-barrel nanobrewery in Langdon, North Dakota puts the seal on their growlers without signing the license agreement?

I wonder how much of this has been thought through. Regardless, it’s already gaining traction—if the counter at the bottom of the BA’s Seal pages are to be believed, there are already 726 breweries that have adopted the Seal at the time I’m writing this paragraph.

That’s my hot take(s). Curious to see how this plays out over the next few days and weeks, and I wonder when the first “test” will be…

Some other links to read on this:

• Paste Magazine
• Bryan Roth
• Jeff Alworth