Liquor Ads on TV: Is Federal Regulation Brewing?

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If you've watched any television in your lifetime, chances areyou've seen more than a few beer ads. In fact, some of the mostmemorable advertisements in the history of the medium have beenproduced by beer makers, as they vigorously compete for customerallegiance. It's just another part of doing business for beercompanies, which depend on TV ads to build brand namerecognition.

But if you're a consumer who enjoys other spirits besides beer,you might be wondering why you never hear anything on TV about yourfavorite brands, or even competing liquor products. The reason youdo not is because, for the past 50 years, the spirits industry haslived under a voluntary ban on the placement of liquor ads on TV.But as revenues have declined gradually over the past twoincreasingly health-conscious decades, the industry has rethoughtthe wisdom of the ban and began cautiously testing the regulatoryclimate by placing ads on some local TV or cable stations. Thedebate over the wisdom of this reversal has been heating upnationally since NBCannounced recently that they would allow liquor commercials torun during late-evening programming, making them the first nationalnetwork to do so.

Not surprisingly, a lot of social do-gooders are up in arms overthis and are demanding that federal policymakers take action tohalt the practice. NBC "is shirking its public interestresponsibility as a broadcaster by putting its bottom line ahead ofthe health and safety of young people," says GeorgeA. Hacker, director of the Alcohol Policies Project at theCenter for Science in the Public Interest. And Joseph Califano,director of the National Center on Addiction and Substance Abuse atColumbia University, told The Wall Street Journal lastweek, "The only solution now is for federal regulation, just as wehave federal regulation prohibiting tobacco ads on television."

From a public policy perspective, the fear seems to bepuritanical in character: If people see booze ads on TV, they willdrink more. Such post hoc reasoning could be challenged on a numberof grounds. Specifically, it is difficult to believe that Americansare a mindless herd of robots who will make a mad dash to theirlocal liquor stores just because they see a few TV ads. In fact,Dr.Morris E. Chafetz, president of the Health Education Foundationand author of The Tyranny of Experts, argues that "theclaim that advertising can lead anyone down the bottle-strewngarden path not only to drink alcohol but to abuse it, is purehokum." In the mid-90s, Dr. Chafetz conducted a review of academicresearch for the New England Journal of Medicine on thequestion of how advertising affected alcohol use. His conclusion:"I did not find any studies that credibly connect advertising toincreases in alcohol use (or abuse) or to young persons taking updrinking. The prevalence of reckless misinterpretation andmisapplication of science allows advocacy groups and the media tostretch research findings to suit their preconceivedpositions."

So even though academic evidence suggests that exposure toadvertising is unlikely to increase consumption, liquor companiesare still willing to run ads, perhaps in an attempt to build brandrecognition or attract beer and wine consumers. The question is, isthere anything wrong with that?

The answer, of course, is all a matter of personal opinion. In afree society, however, people should be at liberty to make suchchoices without government entering the picture. Adults should beresponsible for their decisions in this regard and they shouldexercise authority over their children until they reach an age whenthey can be trusted to make such decisions on their own. Employingthe old "It's about the children!" defense to support an ad bandoesn't make sense for other reasons. As my Cato Institutecolleague Doug Bandow noted in a1997 Wall Street Journal editorial, "almost every goodadvertised on the airwaves may have some inadvertent adverse effecton the young," whether it is cars, riding mowers, high-fat food, orcomputers. "But that's no excuse for banning ads," concludesBandow.

Moreover, children can see liquor ads in magazines andnewspapers too, so should we ban liquor ads in print? Which raisesanother important question: Why is it that we continue to toleratean artificial regulatory distinction between print and electronicmedia? For decades, policymakers have imposed the equivalent ofsecond-class citizenship on electronic media (television, radio) interms of First Amendment protections. Unlike their printcounterparts, which receive substantial free speech protections,electronic media face numerous speech restrictions that would beunthinkable for newspapers or magazines. So the next time you see anewspaper editorializing about the need to ban liquor ads on TV,fire off a letter to the editor and ask them how they'd feel abouta federal ban on all those liquor ads that appear in the paper'spages and provide them with substantial revenues.

Anyway, a federal ban on televised liquor advertising wouldprobably not pass First Amendment muster today. In the important1996 decision Liquormart,Inc. v. Rhode Island, the Supreme Court struck down aRhode Island ban on the advertisement of retail liquor pricesoutside of the place of sale since such a blanket prohibitionagainst truthful speech about a lawful product betrayed the FirstAmendment. As Thomas A. Hemphill, a fiscal officer for the NewJersey Department of State, noted inRegulation magazine in 1998: "That landmark decisionmakes it much more difficult for legislators to restrict truthfulcommercial speech, thus establishing a precedent for more stringentevidentiary requirements underlying future advertising regulations.Therefore any new law that imposes a comprehensive ban ontelevision or radio liquor commercials will probably not surviveFirst Amendment judicial review." The Court bolstered this line ofreasoning in the subsequent 1999 decision GreaterNew Orleans Broadcasting Assn., Inc. v. United States,which declared that the FCC could not ban casino advertising instates where gambling was legal. The Court declared, "the speakerand the audience, not the Government, should be left to assess thevalue of accurate and nonmisleading information about lawfulconduct." These decisions also suggests that the Court may finallybe getting serious about affording commercial speech the sameprotections granted to political speech, a move that is long overdue.

A final concern about a federal regulatory response to TV adsrelates to its potential applicability to the Internet. Astelevision and the Internet increasingly converge and moreAmericans gain access to broadband connections, it is likely thatmore and more television programming will be made available overthe Net. So any ban on liquor ads on TV would likely havethreatening implications for Internet Webcasting in the longrun.

In conclusion, there has never been any logic behind theartificial distinction between liquor and other products, such asbeer and wine, when it comes to promotional activities. Alcohol isalcohol. Why should the form in which it is delivered change itslegal status? And why place advertising restrictions onlawful products at all? If someone was trying to sellcrack cocaine or cruise missiles on TV, it might make for a moreinteresting debate. But alcohol is a legal product thatmanufacturers have every right to promote. Policymakers need totake a sober look at these realities before they rush headlong intoneedless and unconstitutional restrictions on liquor advertisementson TV.