Washington, D.C. — The New Civil Liberties Alliance submitted a public comment today in response to the Tobacco Tax and Trade Bureau’s proposed Labeling Modernization Rule. In TTB’s attempt to reform the overly burdensome Certificate of Label Approval (COLA) system used to govern the labeling and advertising of wine, distilled spirits, and malt beverages, the agency’s Proposed Rule fails to address two principal defects in the COLA scheme: (1) ongoing government censorship—indeed prior restraint—of creative expression; and (2) TTB’s flawed regulation-by-guidance practices.

NCLA agrees with the U.S. Supreme Court—the “risks of freewheeling censorship are formidable”—and recommends that the Bureau withdraw the Proposed Rule and draft a new regulation for notice and comment that instead puts an end to TTB’s unconstitutional, content-based censorship regime. 

Additionally, the Bureau should disavow the Proposed Rule’s stated intention to continue its use of guidance as a means of regulating the industry.  The Bureau should adopt NCLA’s January 25, 2019 Petition for Rulemaking to the Treasury to ensure that all future rules promulgated to establish a substantive change to existing law or policy will, at a minimum, follow APA notice-and-comment procedures. 

NCLA filed its comment ahead of the TTB’s June 26, 2019 deadline for accepting comments.

“At its core, the current COLA process is no more than licensing free speech and an unconstitutional prior restraint on liberties guaranteed to all Americans by the First Amendment. Unconstitutional speech licensing must be completely eliminated—not ‘modernized.’”—Michael P. DeGrandis, Senior Litigation Counsel, New Civil Liberties Alliance


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.