How About Some Wine With That Nanny State?

The Federalist - Tuesday May 17, 2016

by John Michael Seibler

Even the worst of men have their moments. Take the Roman Emperor Nero. Mixing wine and honey with mountain snow, he created the first sorbet.

Of course, were Nero to make that sorbet in modern America and then sell it, he could be hauled off to a federal hoosegow. That’s because federal law—actually, several laws: 21 U.S.C. §343, 333, and 21 C.F.R. §135.140(e)(4)—impose a maximum one-year jail sentence or $1,000 fine for the sale of wine-flavored sherbet with too much wine in it.

How much is too much? Well, that’s not entirely clear. 21 C.F.R. §135.140(e)(4) stipulates that “optimal nonfruit characterizing ingredients” for sherbet may include a “[d]istilled alcoholic beverage, including liqueurs or wine,” but no more than is “required for flavoring.” If your sherbet fails a federal taste test (or a federal taste-tester fails a sobriety test), that could be a federal crime.

Many sherbet and ice-cream recipes call for wine, and a heavy hand won’t land you in jail so long as you never sell your frozen creation. But for small businesses that do sell, like Milwaukee’s Purple Door Ice Cream, vague “taste-test” regulation offers little guidance to avoid potential criminal liability.

The Muddling Doesn’t End There

Adding a bit more wine than the absolute minimum a bureaucrat may think is “required for flavoring” is just one of many oddball wine-related crimes in the federal law. To uncork a few more:

• It is a crime to ride your bike while holding a glass of wine in a national park, 18 USC §1865 and 36 CFR §4.30(h)(5).
• It is a crime to sell a wine bottle that is in any way “disparaging of a competitor’s product,” 26 U.S.C. §5606 and 27 C.F.R. §5.42(a)(2).
• Or with a label that looks like a stamp, 27 U.S.C. §207, §205(e) and 27 C.F.R. §4.39(e)(1), or with the word “zombie” in the brand name, 27 C.F.R. §4.39(a)(9).
• It is a crime to sell wine through subliminal messages, 27 U.S.C. §§205, 207 and 27 C.F.R. §4.64(k).
• It is a crime for winemakers to not report any “extraordinary or unusual loss” of wine, 26 U.S.C. §5661(b) and 27 C.F.R. § 24.268.
• Perhaps most surprisingly, it is a crime to advertise wine with “[a]ny statement, design, device, or representation . . . which tends to create the impression that a wine . . . has intoxicating qualities,” 27 USC §§205, 207 & 27 CFR §4.64(a)(8).

From 37 to 41 AD, before Nero held sway and created wine sorbet, Caligula ruled Rome. No stranger to the grape, he consumed “legendary amounts of wine” and may even have suffered from lead poisoning as a result. But he remains infamous for another reason.

English jurist William Blackstone recorded that Caligula “wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.” Arcane criminal regulations buried deep within the federal code can ensnare unsuspecting citizens just as surely today.

Heaven help the small-business owner who unwittingly pours in a little more wine than a vacationing federal agent prefers.

Large companies perhaps can afford to have armies of scientists and attorneys pore through and understand obscure federal regulations. But heaven help the small-business owner who unwittingly pours in a little more wine than a vacationing federal agent prefers. He or she could be branded a criminal.

A criminal law based on taste preferences rather than the core moral code everyone knows by heart—thou shalt not kill or steal, and so on—is a symptom of excessive criminalization. It signals that it’s time to reconsider how and why criminal laws are written.

When the feds can’t resist attaching criminal penalties to vague regulations regarding “optimal nonfruit characterizing ingredients” in sherbet, it’s time for Congress to stop the madness, step in, and reclaim “[a]ll legislative powers” granted in Article 1 of the United States Constitution.

Life is too short—and wine sherbet too tasty—to risk a reign of countless Caligulas.

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