How the First Amendment invalidated some of Utah’s alcoholic beverage advertising restrictions that treated liquor and wine different than beer.

One last case in our lead-up to two recent First Amendment decisions about alcohol advertising. It’s a 10th Circuit decision – Utah Licensed Beverage Association v. Leavitt et al. involving a challenge by an industry group to Utah’s restrictions on alcohol advertising which were restrictions on the types of entities that could advertise pricing and alcohol sales and certain methods of advertising (some retailers were limited to simply displaying signs that they were licensees and there were restrictions on where liquor pricing could be displayed).

The important points from this 10th Circuit decision are:

  1. While Utah had followed Rubin and 44 Liquormart and removed restrictions on some beer advertising, it hadn’t done the same for wine and liquor. The Court held that the distinction regarding different types or classes of alcohol was “irrational” and lacked any form of support, let alone, the State had an advertising campaign that stated all alcohol was “alcohol” and eschewed these distinctions:

ULBA proposes that Utah also fails Central Hudson ‘s third part because the state’s inconsistent treatment of different types of alcohol ensures that its speech restrictions will not alleviate the harms they are designed to redress, thus making the scheme “irrational” under Coors.   In Coors, the Supreme Court applied Central Hudson and struck down a federal statute that prohibited the disclosure of alcohol content on the labels of containers of beer.   The federal government’s asserted interest was to prevent “strength wars” among beer manufacturers, and the statute sought to accomplish this by banning both “numerical indications of alcohol content” and “descriptive terms” such as “strong” and “extra strength.” Coors, 514 U.S. at 480-81, 115 S.Ct. 1585.

….

According to ULBA, unless one form of alcohol is more harmful or dangerous than another, temperance cannot be promoted by a statutory scheme that permits some types of alcohol advertising and proscribes others.   But, ULBA argues, Utah itself engages in a public health advertising campaign which states that there is no meaningful difference, other than equivalent liquid volume, among different kinds of alcohol.   See [Utah’s](advertisement declaring “Alcohol Is Alcohol Is Alcohol ․ It’s Not What You Drink.   It’s How Much.”).   Because Utah has presented “no sound reason” why advertising restrictions on wine and liquor confer more temperance benefits than comparable (but nonexistent) restrictions on beer advertising, ULBA concludes that Utah’s ban on the advertising of only certain kinds of alcoholic beverages is irrational, and consequently unconstitutional, under Greater New Orleans and Coors.  

2.The Court found that while temperance was a substantial interest satisfying the Central Hudson test at the heart of all commercial speech restriction analysis, (you can read our other entries on this here, and here), Utah’s other proposed interest of “protecting nondrinkers from liquor advertising” was not, reciting prior precedent about other cases where the State’s laws attempting to shield people from offensive information were found to be violations of the First Amendment:

[O]ffensiveness was “classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.”  We specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech.

3. The Court also rejected the “just-so-story” arguments of the State that allowing advertising would increase consumption and the unfounded assertions that somehow their evidence suggested that liquor or wine advertising would hinder the goal of temperance in a way that beer advertising does not – taking the State of Utah to task for presenting evidence on beer advertising but presenting not one shred of information or evidence concerning liquor or wine advertising:

With respect to temperance, we have carefully reviewed the evidence presented by Utah concerning the relationship between temperance and alcohol advertising.   We note that while that evidence repeatedly warns of the dangers of alcohol, and suggests that these dangers may be aggravated by alcohol advertising, it makes virtually no distinction among different types of alcohol.   In fact, while Utah’s documents use the word “alcohol” dozens of times,… they refer to only two studies regarding a particular type of alcohol.   Those studies point to the adverse effects of beer advertising.   …   If the words “liquor” or “wine” appear anywhere in Utah’s evidence, this court is unable to find them.

Utah’s evidence thus appears to prove only that there is a substantial state interest in tempering the consumption of all types of alcohol, not just liquor and wine.   Following the analysis of Coors, this makes no rational sense if Utah’s true aim is to suppress the social ills which its own evidence attributes to all types of alcohol.   See Coors, 514 U.S. at 488, 115 S.Ct. 1585.   Like the regulations struck down by the Supreme Court in Greater New Orleans, the Utah statutes currently “distinguish[ ] among the indistinct, permitting a variety of speech,” such as beer advertising, “that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all,” such as the posting of wine lists on the outside of restaurants.   See Greater New Orleans, 527 U.S. at 195, 119 S.Ct. 1923.   We conclude that, with respect to the state’s interest in temperance, Utah’s present scheme of advertising regulation must be considered irrational.   It thus fails the third part of Central Hudson.

4. Finally, as we’ve seen in many of these advertising restriction cases, the Court went straight to the 44 Liquormart dicta regarding measures that would be more narrowly tailored to achieving the goals of temperance than the type of ban at issue in asserting that other measures existed which would be less restrictive which, under Central Hudson, usually means that a statute fails the test:

[A]lternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State’s goal of promoting temperance.   As the State’s own expert conceded, higher prices can be maintained either by direct regulation or by increased taxation.   Per capita purchases could be limited as is the case with prescription drugs.   Even educational campaigns focused on the problems of excessive, or even moderate, drinking might prove to be more effective.

This 10th Circuit case is also notable in that it pointed out some statutes which were not challenged on appeal that would not pass the Central Hudson test as the implication was that since they regulated speech about an “unlawful activity” the first prong of Central Hudson wouldn’t be fulfilled. This dicta is important as it provides some evidence of a jurisprudence recently used by Courts in denying free-speech claims in beer and other alcohol labeling and advertising cases. Here’s what the Court briefly noted on the issue:

The district court found that several of the statutes in controversy restrict truthful, nonmisleading commercial speech, not conduct, and thus satisfy the first part of Central Hudson.   Unsurprisingly, ULBA does not contest this finding.   Utah, however, claims that some of these statutes are permissible prohibitions on the advertising of unlawful conduct.   For instance, Utah Code Ann. § 32A-12-401(6) prohibits “the advertising or use of any means or media to offer alcoholic beverages to the general public without charge.”  Utah Code Ann. § 32A-12-401(6) (2000).   Utah reasons that because the state may ban alcohol “giveaways,” it may also ban the advertising of such giveaways, and thus this statute is not unconstitutional under Central Hudson.  

This case is a great example of the application of Rubin v. Coors Brewing Company and 44 Liquormart v. Rhode Island to a State restriction and provides further pointers on bringing a First Amendment challenge to regulations and laws inhibiting the advertising and labeling of alcoholic beverages. From each of the cases we’ve been examining this week a distinct pattern of argumentation appears to carry the day: 1) State and Federal assertions based on unfounded “just-so-stories” about the effects of advertising (creating “strength wars”, increasing consumption levels) will not be accepted without rigorous proof; 2) prohibiting the availability of truthful information about a lawful activity  – namely, rejecting labels or fining over advertising that contains truthful information – will result in invalidation; 3) the availability of alternative measures to achieve the stated goals of the legislation or regulation which require some activity that doesn’t involve restricting speech is a must in terms of presenting the arguments under a Central Hudson analysis.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

You may also like...

Leave a Reply

%d bloggers like this: