Spirits on the Air
Is federal regulation brewing?

By Adam Thierer, director of telecommunications studies at the Cato Institute.
February 1, 2002 8:45 a.m.

f you've watched any television in your lifetime, chances are you've seen more than a few beer ads. In fact, some of the most memorable advertisements in the history of the medium have been produced by beer makers, as they vigorously compete for customer allegiance.

But if you're a consumer who enjoys other spirits besides beer, you might be wondering why you never hear anything on TV about your favorite brands. The reason you don't is because, for the past 50 years, the spirits industry has voluntarily refrained from putting liquor ads on TV. But as revenues have declined gradually over the past two increasingly health-conscious decades, the industry has rethought the wisdom of the ban and began cautiously testing the regulatory climate by placing ads on some local TV or cable stations. The debate over the wisdom of this reversal has been heating up nationally since NBC announced recently that they would allow liquor commercials to run during late-evening programming, making them the first national network to do so.

Not surprisingly, a lot of social do-gooders are up in arms over this and are demanding that federal policymakers take action to halt the practice. Joseph Califano, director of the National Center on Addiction and Substance Abuse at Columbia University, told the Wall Street Journal recently, "The only solution now is for federal regulation, just as we have federal regulation prohibiting tobacco ads on television."

From a public-policy perspective, the fear seems to be puritanical in character: If people see booze ads on TV, they will, like a mindless herd of robots, make a mad dash to their local liquor stores just because they see a few TV ads. But those fears are misguided. In fact, Dr. Morris E. Chafetz, president of the Health Education Foundation and author of The Tyranny of Experts, argues that "the claim that advertising can lead anyone down the bottle-strewn garden path not only to drink alcohol but to abuse it, is pure hokum." In the mid-1990s, Dr. Chafetz conducted a review of academic research for the New England Journal of Medicine on the question of how advertising affected alcohol use. His conclusion: "I did not find any studies that credibly connect advertising to increases in alcohol use (or abuse) or to young persons taking up drinking. The prevalence of reckless misinterpretation and misapplication of science allows advocacy groups and the media to stretch research findings to suit their preconceived positions."

So even though the evidence suggests that exposure to advertising is unlikely to increase consumption, liquor companies are still willing to run ads, perhaps in an attempt to build brand recognition or attract beer and wine consumers. The question is, is there anything wrong with that?

The answer, of course, is all a matter of personal opinion. In a free society, however, people should be at liberty to make such choices without government entering the picture. Adults should be responsible for their decisions in this regard and they should exercise authority over their children until they reach an age when they can be trusted to make such decisions on their own.

If the mere fact that children might see ads is justification for banning them, then why not ban liquor ads in print mags — kids can see them too. In fact, why not ban ads for cars, riding mowers, high-fat food, or computers? All of those can be harmful to kids, as well, in certain circumstances.

Moreover, a federal ban on televised liquor advertising would probably not pass First Amendment muster today. In the important 1996 decision Liquormart, Inc. v. Rhode Island, the Supreme Court struck down a Rhode Island ban on the advertisement of retail liquor prices outside of the place of sale since such a blanket prohibition against truthful speech about a lawful product betrayed the First Amendment. The Court bolstered this line of reasoning in the subsequent 1999 decision Greater New Orleans Broadcasting Assn., Inc. v. United States, which declared that the FCC could not ban casino advertising in states where gambling was legal.

There has never been any logic behind the artificial distinction between liquor and other products, such as beer and wine, when it comes to promotional activities. Alcohol is alcohol. Why should the form in which it is delivered change its legal status? And why place advertising restrictions on lawful products at all? If someone were trying to sell crack cocaine or cruise missiles on TV, the government would have constitutional grounds for restricting such ads. But alcohol is a legal product that manufacturers have every right to promote. Policymakers need to take a sober look at these realities before they rush headlong into needless and unconstitutional restrictions on liquor advertisements on TV.