Alcohol advertising in activist crosshairs
Pub Date: 8/1/2006
While some anti-alcohol zealots such as the Center for Alcohol Marketing and Youth (CAMY) continue to issue specious "studies," and a group of state attorneys general clamors for investigations of advertising practices (see July ABL Leader article), class action lawyers bent on collecting huge fees and settlements from adult beverage business have been finding little traction in the courts.
David Boies, a partner in Straus and Boise, who gained some notoriety for his lawsuits against the food and pharmaceutical industries, has filed suits in seven states based on the novel premise that parents have been financially harmed because youth have been exposed to alcohol advertising.
But Boies' batting average should send him back to the minors, having gone 0-5 with just two at-bats remaining. Boies lawsuits are pending in North Carolina and West Virginia with motions to dismiss under consideration, but state courts in Wisconsin and Colorado have tossed his suits as have federal courts in Ohio and Michigan and, most recently, a Superior Court in Washington, D.C.
Similar suits have also been dismissed in California and Oregon.
Judges have been tagging decisions with sometimes derisive commentary. In the Michigan case, for example, District Court Judge Marianne O. Battani wrote, "Not once in the almost 74-page complaint does plaintiff set forth facts in support of (the) claim which would entitle (plaintiff) to relief against a single defendant... Without factual allegations, the complaint is nothing more than a diatribe against the advertising practices of the alcohol industry as a whole."
The suits have targeted, among others, Heineken, Coors, Brown-Forman, Diageo and the Beer Institute, a trade association for brewers.
The Beer Institute Bulletin said, "The court(s) once again confirmed that regulation of alcohol advertising and marketing is a matter of legislative and regulatory bodies, not the courts."
Robert A. Levy, a senior fellow in constitutional studies at the Cato Institute, wrote of the Boies suits, "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."
Levy also wrote, "The choice between preserving core First 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."
Beer and spirits trade associations have adopted lauded marketing standards and compliance programs that prohibit member companies from advertising in media where less than 70 percent of the audience is adult.
However, the FTC has announced it is planning to do another evaluation and is seeking information, along with public comment, on alcohol sales data, advertising and promotional expenditures in measured and unmeasured media, product placement standards and third-party review processes that address complaints alleging violations of industry advertising codes. Industry members are expected to fully cooperate in the effort.
CAMY and other reform organizations nevertheless are not satisfied, agitating for even stricter standards, advocating no alcohol advertising in media with an adult audience that falls below 85 percent, effectively muzzling all adult beverage advertising.
But the CAMY and neo-prohibitionist agenda seems clear: always move the goal post further away. No sooner did they lay down the 85 percent yardstick than they proclaimed even that was not sufficient.
The FIFA World Soccer Cup's TV audience was 85 percent or more over the age 21, yet CAMY demanded June 22 that FIFA censor all alcohol advertising and sponsorships, declaring, "It's time to break the tie between alcohol marketing and high-profile sporting events." One might imagine what other ties CAMY and their ilk will be demanding be broken next: Alcohol and adult audiences?
FIFA was also assailed by "health experts" at the Center for Science in the Public interest (CSPI) for allowing commercial time for Coca-Cola and McDonalds.
According to the Beverage News Daily, Francine Katz, vice president of communications and consumer affairs at Anheuser-Busch, accused CSPI of "trying glom on to the World Cup to gain publicity for its anti-alcohol rantings. This group has attacked everything from Mexican food and buttered popcorn to use of designated drivers.
"A-B has been a sponsor of the FIFA World Cup for 20 years because the audience that watches this sporting event is overwhelmingly adult," Katz said. "According to Nielsen Media Research, 90 percent of Univision viewers for the 2002 World Cup were 21 or older; 87 percent of ABC viewers were 21 or older, and 85 percent of ESPN viewers were 21 or older."
The European Union, meanwhile, with its penchant for over-reaching big government, is considering draconian bans on alcohol advertising in order to curb so-called "binge drinking" and youth drinking.
The EU is also said to be weighing:
–Cost controls on adult beverages (presumably to raise prices) and bans on discounting
–Health warning on labels similar to those found on tobacco products
–Roadblocks and other means for random breathalyzer tests
–Increased taxes on alcohol, especially ready-to-drink beverages, often disparagingly referred to as "alco-pops"
Source: The Montana Tavern Times, August, 2006, published monthly by Continental Communications, 125 W. Granite St., Suite 102, Butte, MT 59701.