Tag Archives: commercial speech

Maine’s Prohibition on Posting Alcohol Content: Unconstitutional Restriction on Commercial Speech

 Maine’s Liquor Licensing and Compliance agency reportedly ordered a brewer to take down information regarding the alcohol content of beers on offer. The problem with the law is that it is restriction on commercial speech that is neither false nor misleading. Manufacturers should be encouraged to share as much truthful information as possible about their products so that consumers can make rational, informed decisions about what they buy. The Constitutional doctrine developed under Central Hudson says that while commercial speech may deserve somewhat less protection than political speech, for example, restrictions on speech containing information about a lawful product that is neither false nor misleading must serve a “substantial interest” of the state, with the regulation directly furthering that interest, restraining the speech only to the extent necessary to further the interest (tailoring).

According to the article, the law has been on the book since 1937, and has probably never been challenged under the doctrine espoused by Central Hudson. In 44 Liquormart v. Rhode Island, the Supreme Court struck down the state’s ban on advertisement of liquor prices because it unconstitutionally abridged commercial speech. In his (non-majority) opinion, Stevens stated, “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” This statement seems to address precisely what is happening in Maine’s prohibition on alcohol content posting. If Maine’s regulation were construed to be a “flat ban” on posting/advertising alcohol content, it would not likely survive First Amendment scrutiny.

Jester King Craft Brewery, Inc. was a plaintiff in a Texas suit against the TABC (835 F. Supp. 2d 227). There, the District Court recognized the First Amendment protection in the context of Texas alcohol content labeling/advertising laws that plaintiffs claimed were “inconsistent, nonsensical, and [not justified by] any substantial government interest.” The court also held that forcing plaintiffs to call ale “beer” if its alcohol content was below a certain level violated the First Amendment because the state failed to show the regulation advanced a substantial state interest.

In Rubin v. Coors Brewing Co, the Supreme Court struck down a regulation on displaying  alcohol content in certain contexts, finding the regulation not “sufficiently tailored to its goal.” Notably, the court acknowledged that there may be a substantial interest in suppressing “strength wars” (the government’s justification for prohibiting information about alcohol content). However, the regulation at issue was too internally inconsistent to achieve that goal, so it failed the First Amendment test. Concurring, Stevens called the regulation an attempt “blindfold the public,” and argued that truthful information about alcohol content deserves full First Amendment protection.

Thus, it would seem the door is not entirely closed on Maine attempting to justify its regulation on posting alcohol content, but the state would face an uphill, and likely losing battle–probably not one it has an interest in fighting. Jonathan Adler of the Volokh Conspiracy posted an article on February 7, 2014 contending that Maine’s law, under Rubin, violates the First Amendment. Good enough for me to remove the question mark from the title of this post and state it affirmatively (even though the Rubin did not foreclose the “strength wars” argument).

Interestingly, there has been a fair amount of chatter amongst the beer-drinking public about “strength wars” amongst craft brewers. Double-triple-imperial beers are ubiquitous. Many, of course, enjoy a high-alcohol beer for the depth and complexity of flavors it can offer. A high-alcohol beer’s “efficiency” often plays a role in popularity as well. Extreme examples of high-alcohol beer recently made by BrewDog and others bring to mind the arms race played out by Tom and Jerry, with each one topping the other’s newest arsenal acquisition with ever-larger cannons and incendiary devices.

Consumers themselves have reacted to this increase by expressing desire for more “sessionable” beers, the popularity of which continue to rise. Most brewers, along with various imperials and doubles, now seem to have some form of lighter “day” IPA, XPA, or hoppy lager. Stone Brewing Co. announced its “Go To” Session IPA on 2/3/14. Brewers self-regulate the serving of stronger beers as well. As beers approach 7-8% and up, they are far more likely to be served in reduced portions–often 6–8 ounces for the strongest beers.

If the market responds in this way to “strength wars,” there is little reason to believe the government should intervene by “blindfolding” the public in hopes doing so will quell a strength war. The whole thing is silly, anyhow, given that someone interested primarily in strength can just go out and buy the cheapest “handle” of vodka, gin, whiskey, rum, brandy, tequila . . . or order the same at a bar.

Ironic, too, the early fear of strength wars in beer. Some 80 years later, the drafters of legislation such as Maine’s might be surprised to know that for the mass market in beer, consumers themselves have kept the alcohol level nice and low, as it turns out that “cold tasting” beer is necessarily low in alcohol.

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