Liquor and Beer Ads Are Not the Problem
by Robert A. Levy
December 8, 2003
Robert A. Levy is senior fellow in constitutional studies at Cato Institute.
Hardly a week passes without a reminder that the state tobacco lawsuits have had an enduring and corrupting effect on the rule of law. The legal travesty du jour involves yet another "sin" industry. This time the trial lawyers are hounding the purveyors of alcoholic beverages because of ads ostensibly targeted, "deliberately and recklessly," at underage consumers.
Here's the cast of characters: The plaintiffs are a class of parents and guardians of kids too young to drink but exposed to the ads. Representing the class are a pair of law firms: one headed by David Boies, the eminent litigator hired by the U.S. Justice Department to go after Microsoft; and a second headed by his son, David Boies III. The defendants include the Beer Institute and a number of large distillers and brewers such as Coors, Heineken and Brown-Forman. Interestingly, the two largest domestic beer producers, Anheuser-Busch and Miller, clients of Boies senior, are not among the defendants.
Supposedly, the offending companies advertise in magazines "disproportionately read" by young people, place their products in movies seen by teens, make their Web sites accessible to minors, allude to college activities like "spring break," and use cartoon characters--probably the same way MetLife uses Snoopy to hoodwink all those gullible adolescents into buying insurance policies.
Never mind that our drinking laws are absurd. An 18-year-old is presumably mature enough to sign contracts, get married, have an abortion, go to war and decide who is going to run the country. But he's three years away from coping with the weighty implications of consuming a can of beer. Nor can a person of age 20, according to the Boies team, possibly resist the allure of a movie star enjoying a brew in a PG-13 film. In the end, how does a brewer or distiller, or a jury for that matter, distinguish an ad that would be suitable for a 21-year-old from an ad that might be construed as impermissibly "targeted" at a 20-year-old?
It's not as if this issue has escaped scrutiny. The Federal Trade Commission's 2003 Report on Alcohol Marketing and Advertising, approved by the commission without dissent, looked at nine major companies and analyzed their ads, marketing plans and consumer research. The report "found no evidence of targeting underage consumers" in the increasingly popular market for flavored malt beverages, which combine beer and distilled spirits. The purpose of ads for alcoholic beverages, like ads for vehicles, is to encourage brand shifting, not to convert non-drinkers into drinkers.
There's another key concern when courts are asked to enjoin private companies from exercising their commercial speech rights. In a 1983 case, Bolger vs. Youngs Drug Prods. Corp., the U.S. Supreme Court remarked that government must not "reduce the adult population ... to reading only what is fit for children." Then, 13 years later, the court held that even "vice" products like alcoholic beverages are entitled to commercial speech protection (44 Liquormart Inc. vs. Rhode Island). Indeed, our Constitution protects Ku Klux Klan speech, flag burning and gangsta rap, which is targeted directly at teenagers. Yet if Coors wants to advertise Keystone Light in Sports Illustrated, Boies and his team of lawyers would bring the boot of government down hard on the company's neck.
However serious the problem of underage consumption of beer and liquor, there are countervailing values that are implicated when speech restrictions are proposed.
The choice between preserving core 1st Amendment values and regulating ads for alcoholic beverages is a particularly easy one when there is little evidence of any connection between those ads and underage drinking. We need not sacrifice commercial free speech to reduce alcohol consumption by minors. Nor should we sit back and allow the trial lawyers to add one more notch to their expanding tobacco belt. Their message is simple: The doctrine of personal accountability is out the window. In its place is the insidious notion that you can engage in risky behavior, then force someone else to pay for your mistakes. That message is far more pernicious than any beer or liquor commercial.
This article originally appeared in The Chicago Tribune on December 8, 2003.