Missouri Division of Alcohol and Tobacco Control issues emergency amendment to deal with Missouri Broadcasters ruling invalidating restrictions on advertising alcoholic beverages.

The Missouri Division of Alcohol and Tobacco Control has responded to the ruling in the Missouri Broadcasters Association v. Taylor case by issuing a proposed emergency amendment to remove the regulations enjoined by the District Court’s decision that portions of some existing regulations violated the First Amendment.

In discussing the impetus for the emergency amendment, the Division issued this position statement with the amendment:

EMERGENCY STATEMENT: This emergency amendment is necessary to remove language the Division has been enjoined from enforcing by the Court’s decision in Missouri Broadcasters Association v. Taylor, No. 2:13-cv-04034-MDH(W.D. Mo. June 29, 2018). This case, which dealt with the advertising of alcohol, resulted in the Court enjoining enforcement of the regulations contained in 11 C.S.R. § 70-2.240(5)(G) and 11 C.S.R. § 70-2.240(5)(I). This emergency amendment is necessary to protect governmental interest as members of industry and the public may feel compelled to follow rules that the Court has enjoined from enforcement. Additionally, this amendment is necessary following Missouri Broadcasters to reflect new trends in the advertising of alcohol. As a result, the Division of Alcohol and Tobacco Control finds a compelling governmental interest, which requires this emergency action. A proposed amendment, which covers the same material, is published in this issue of the Missouri Register. The scope of this emergency amendment is limited to the circumstances creating the emergency and complies with the protections extended in the Missouri and United States Constitutions. The Division of Alcohol and Tobacco Control believes this emergency amendment is fair to all interested persons and parties under the circumstances. This emergency amendment was filed October 5, 2018, becomes effective October 20, 2018, and expires April 17, 2019.

The new amendment expands the definition of “advertising” to specifically include material disseminated through the “internet, email, texting, website, mobile applications” which wasn’t part of the prior definition. It isn’t an overly critical change to the regulations challenged and enjoined by the District Court – in fact it does the bare minimum in removing from the operative regulations those specific regs that were enjoined but fails to address other problematic portions of the regulations that, by this point, any State should be on notice are likely unconstitutional restrictions of free speech such as:

(5) No advertisements of intoxicating liquor may contain: …

(B) Any statement that is disparaging of a competitor’s products;

(C) Any statement, design, device or representation which is obscene, indecent, in poor taste or conveys a derogatory connotation;

But I guess those provisions will just have to wait for another challenge by a concerned citizen who will likely be awarded attorneys’ fees from tax dollars that could have been spent on textbooks and responsible drinking programs instead of paying money over to attorneys who were forced to challenge an identifiably unconstitutional regulation.

We’ve covered the Missouri Broadcasters decision on multiple occasions, most recently detailing how the arguments that the District Court found compelling are a decent outline for similar challenges in other states. As the appellate briefs are filed we’ll keep you updated right through oral argument and the eventual 8th Circuit decision in the matter.

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.

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