Throwback Friday: ATF Tried to Kill Black Death Vodka. The Distributor Fought Back.
In the early 1990s, Black Death Vodka gave consumers plenty to look at before they ever reached for a glass. The smiling skull wore a top hat; the promotional campaign featured Guns N’ Roses guitarist Slash and miniature coffin packaging. Back then, Treasury’s Bureau of Alcohol, Tobacco and Firearms (ATF) handled the federal alcohol-labeling and advertising duties now assigned to the Alcohol and Tobacco Tax and Trade Bureau (TTB). ATF had first approved the labels in 1989, and Cabo went on to spend more than $1 million promoting the brand before the agency moved to revoke the approvals in 1992. Cabo Distribution Co. v. Brady, 821 F. Supp. 582, 590–92 (N.D. Cal. 1992). The reversal put the value of those investments at risk. A label approval helps a supplier turn an idea into inventory, advertising, and distribution commitments. When the government revisits the approval, those commitments do not disappear with the old label.
ATF’s objections connected the label to the campaign: the branding supposedly suggested poison while also trivializing alcohol’s dangers. The court’s 1992 preliminary opinion exposed the tension: “The Bureau cannot have it both ways.” Cabo Distribution, 821 F. Supp. at 597. For a business responding to that kind of allegation, the distinction between discomfort and deception deserves careful attention. A regulator should identify the message consumers supposedly receive and the evidence supporting that interpretation. Otherwise, a brand can find itself trying to rebut two different theories while the agency treats the same image as proof of each.
The proposed substitute showed why the controversy reached beyond the lettering on a bottle. ATF had approved Black Hat, but selling under that name would sacrifice “all the goodwill and product identity” associated with Black Death. Cabo Distribution, 821 F. Supp. at 593–94, 600. A change of name may sound manageable until the business accounts for the advertising, customer recognition, and distribution work tied to the original. The response should put those costs in front of the decision-maker and explain what a replacement label cannot restore. Judge D. Lowell Jensen entered a preliminary injunction in July 1992, preserving the approvals while the litigation continued. Id. at 584.
Why the approved label survived
In October of that same year, Cabo and Black Death USA obtained summary judgment. Cabo Distributing Co. v. Brady, 821 F. Supp. 601, 616 (N.D. Cal. 1992). Revisiting the original 1989 approvals three years later, without unusual circumstances warranting reconsideration, ATF “lacked implicit authority” to revoke the approvals. The process also denied “procedural due process”: the businesses lacked an adequate opportunity to confront the evidence and the basis for the agency’s claimed expertise. Id. at 610–13. Read together, those conclusions give approval holders two questions to press: what authorizes this particular reversal, and what opportunity will the business have to test the government’s reasons for it? Both deserve attention before counsel asks the agency to reconsider its view of the artwork.
The agency also had to connect its objections to the rule it invoked. The court called the version of 27 C.F.R. § 5.34 then in force “a labeling regulation” directed at misleading impressions about the product’s contents, and found the revocation “arbitrary and capricious.” Id. at 613–15. That distinction limited the asserted labeling theory; the opinion recognized separate advertising regulations. A campaign’s tone may attract regulatory attention, but attention alone does not supply the connection between the conduct and the rule.
The fight naturally raised a First Amendment question: how far may the government go in suppressing a provocative message used to sell a lawful product? Cabo raised commercial-speech objections, but the court found “no reason to decide this case on first amendment grounds.” Id. at 615. That matters both to how we describe the win and to how a supplier should build its next challenge. The constitutional issue belongs in the analysis alongside statutory authority, regulatory fit, and fair procedure. Our Authentic Beverages discussion takes up the speech issues surrounding restrictions on truthful brand advertising. Cabo supplies a complementary litigation lesson: develop the administrative objections with the same care as the First Amendment claim, so the court can address the government’s action on every ground the record supports.
How Cabo’s lessons fit today’s revocation rules
Before turning that lesson into a present-day response, account for the regulatory changes that followed the 1992 decisions. In its 1999 rulemaking, ATF discussed Cabo, disagreed with aspects of the decision, and adopted procedures for label approvals, denials, revocations, and appeals. 64 Fed. Reg. 2122, 2123–26 (Jan. 13, 1999). TTB assumed those regulatory responsibilities in January 2003. Current 27 C.F.R. § 13.41 expressly permits TTB to revoke a certificate upon a finding that the label or bottle fails to comply with applicable law or regulations. A business facing action today therefore needs to work from the current rule and the asserted violation. Cabo’s 1992 authority holding does not give an approved label permanent immunity; its continuing value lies in the care it encourages when examining the government’s reasons for changing course.
The current procedures also make the timing and content of that response important. For a proposed revocation of a specific certificate, § 13.42 generally requires notice identifying the basis and gives the holder 45 days from receipt to submit written arguments or evidence. Section 13.44 provides the administrative appeal route and requires exhaustion before judicial review. Those provisions create the opportunity to present the approval history, challenge the agency’s explanation, and offer evidence addressing the alleged problem. A supplier should use that opportunity deliberately, with a response organized around the actual grounds for revocation and the relief it seeks.
Build the response before the label becomes an inventory problem
That work starts with the approval record. Keep the certificate, the approved artwork, later label versions, any qualifications, and the agency’s communications together so counsel can establish what the government approved and what changed. Then match each alleged violation to the provision the agency invokes and the evidence it offers. If the concern comes from a social campaign, ask how the cited rule reaches that campaign; if the concern involves a representation about the bottle’s contents, address that representation directly. The same discipline helps in evaluating trade-practice enforcement claims: a useful response gives the reviewer a clear account of the alleged violation and the evidence bearing on it.
The commercial record should develop alongside the legal one. Advertising expenditures, existing inventory, distribution commitments, retailer placements, and the costs of changing a brand’s identity can explain why a suggested fix leaves substantial problems unresolved. Relevant comparable approvals may also help test the agency’s rationale, provided the response explains why the comparison matters. Put objections, supporting records, and proposed corrections in writing. A later reviewer should be able to follow the business’s position without reconstructing a series of calls, and the supplier should be able to explain the consequences of each proposed remedy without relying on a general assertion that the change will hurt sales.
For wholesalers and distributors, that preparation calls for cooperation before an enforcement letter arrives. The supplier may hold the approval file while the distributor holds the inventory and has made commitments to retail accounts. Their agreements should provide for prompt notice of threatened label action, access to the relevant records, and cooperation in the administrative response. They should also allocate responsibility for relabeling, inventory credits or repurchases, and promotional costs. Those provisions let both sides manage inventory, relabeling, and account commitments while they pursue the legal response.
And whatever happened to Black Death?
The skull still has some life in it. A quarter-century after the 1992 decisions, the brand announced a U.S. relaunch in April 2017, with initial availability in the New York metropolitan and New Jersey markets. More recently, the 2026 London Spirits Competition awarded Black Death Vodka a silver medal and 85 points, listing Central Hisumer S.L. with the entry. Cabo fought to preserve the identity behind its advertising investment, and more than three decades later, the Black Death name still has a place in the spirits business.
Read the opinions: the July 1992 preliminary-injunction orders, 821 F. Supp. 582, and the October 1992 summary-judgment opinion, 821 F. Supp. 601. Both links lead to the full opinion text.
