FCC chairman wants to examine liquor ad

Tuesday, August 4, 1998

The chairman of the Federal Communications Commission announced last week that he plans to survey television stations to determine which ones are airing a liquor industry-paid ad on responsible drinking.

But a commercial-speech expert says the agency would not only overstep its bounds in trying to monitor or regulate liquor ads, it might even tread on protected speech.

“The long and short of it is: The FCC doesn't have any jurisdiction to regulate these ads. [That] falls under the purview of the Federal Trade Commission,” said Rick Kaplar of The Media Institute. “As for whether it's constitutional for either to stop the ad, the answer for most (constitutional scholars) would be no.”

The Distilled Spirits Council of the United States is airing the ad only on WJLA-TV in Washington, D.C. Although aimed at promoting responsible drinking, the ad has been called a pro-drinking spot by some critics.

“We need more information about this situation, and I would like to canvass the networks to find out the extent to which they or their affiliates will be airing these ads,” FCC Chairman William Kennard said in a statement.

The council doesn't plan to air the ad elsewhere, said spokeswoman Lisa Hawkins. The spot went on the air July 4 and will continue through the middle of August.

Hawkins said the ad was made to educate consumers about the alcoholic content of various drinks, so that they can drink more responsibly. The ad notes that 12 ounces of beer, 5 ounces of wine and 1.5 ounces of liquor all have about the same amount of alcohol.

For years, the distilled spirits industry maintained a voluntary ban on television liquor advertising. But in 1996, Seagram broke ranks and began advertising Chivas Regal and Crown Royal on television. When other companies followed with their own ads, the liquor council was forced to repeal the voluntary ad ban.

“Seagram was the tail that wagged the dog,” Kaplar said.

Reed Hundt, Kennard's predecessor, determined that if the distilled spirits industry wasn't responsible enough to maintain a voluntary ban, then the FCC should enact its own restrictions. Hundt left office with no regulations in place, however.

Kennard, who took office last November, also asked the commission to examine liquor advertising. As of Monday, he hadn't officially directed the agency to determine which stations are airing the liquor-industry ad.

Should the FCC proceed to impose restrictions on liquor ads, both jurisdictional and constitutional problems would result because it's the trade commission's job to regulate product advertising, Kaplar said. Even if the ad in question is false and misleading, the FCC would still be overstepping its authority, he added.

Whether or not the goal of both the FCC and the FTC is to reduce underage drinking, Kaplar said attempts to halt ads such as the one in question would fail under the test the Supreme Court established 18 years ago in Central Hudson Gas & Electric Corp. v. Public Service Commission.

As Kaplar noted: “There are less speech-restrictive means to reach their goal.”

–The Associated Press contributed to this report.