The American Flag Napkins You’ll be Using at Your BBQ on July 4th are Probably Illegal

Dorsey & Whitney LLP

There is a little-known, even lesser-enforced, section of the United States Code that actually prohibits the printing of the American flag on paper napkins and other disposable products like paper plates, cups and boxes.  The United States Flag Code, as it is known, also expressly states that “[t]he flag should never be used for advertising purposes in any manner whatsoever.”  4 U.S.C. § 8(i).  The Code was originally enacted in 1942 and the last amendment was made in 2009.  Based on our online search there have been fewer than a dozen cases since 2001 that cite the United States Flag Code generally (4 U.S.C. § 1 et seq.), and none of those cases cite to subsection (i) of section 8 that addresses paper napkins and advertising.  Yet most of us have been to a July 4th BBQ with American flag napkins—they’re readily available for purchase by anyone with an Internet connection.  And we’ve all seen the flag used in a TV commercial (haven’t we?).  What about those American flag cakes – do you think the United States Flag Code was meant to prohibit us from lining up blueberries and strawberries on vanilla frosting? Just some food for thought for you, dear readers. We hope you all enjoy your Fourth of July celebrations, and if you are barbecuing, maybe take a pause to think before grabbing for that flag napkin.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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