Liquor ads on TV

Friday, October 24, 1997

In his first major press interview after taking over as new chairman of the Federal
Communications Commission, Bill Kennard said he wanted his colleagues on the commission to
look into the issue of banning liquor ads from television. Constitutional-law expert
Robert O’Neil examines that issue in his new book.

In the past year, distilled spirits advertising on television has become an issue in
Washington policy circles if not the Republic at large. Joseph E. Seagram & Sons, Inc.
started limited advertising in the summer of 1996, and in November the industry
association revised its voluntary code to include advertising on television and radio,
lifting a decades-old broadcast ban. While the major networks declared early they would
not carry such commercials, about 70 small stations have accepted liquor ads. …

Reed Hundt of the Federal Communications Commission … has been an outspoken foe of
distilled spirits ads since they first appeared, and has pushed the Commission (without
success so far) to launch a formal inquiry into the scope and impact of distilled spirits
advertising. …

Chairman Hundt’s stance gives rise to two distinct questions: First, does the FCC
possess the authority to restrict or ban advertising about lawful products? Second, could
a restriction adopted by any arm of the federal government on broadcast advertising for
distilled spirits only, or beverage alcohol products generally, withstand First Amendment

A careful analysis would conclude that the answer to both questions is “No.”

Any attempt to restrict or ban liquor advertising on television will face numerous
hurdles, constitutional and otherwise, that can be summarized as follows:

  • The FCC has no statutory authority to regulate alcohol advertising on TV. …
  • The Federal Trade Commission has both the statutory authority and the expertise to
    assess whether broadcast advertisements for distilled spirits and other beverage alcohol
    are deceptive or unfair.
  • The FCC’s regulation of cigarette advertising in the 1960s (compelling the airing of
    anti-smoking messages) offers no precedent. It was based on the long-since repudiated
    Fairness Doctrine. …
  • Commercial speech jurisprudence has changed profoundly since Congress passed a flat ban
    on broadcast cigarette ads in 1970. …
  • Under the [Supreme] Court’s current Central Hudson standard, a restriction that applied
    only to liquor advertising would be impossible to justify … because it would not attempt
    to restrict beer and wine advertising as well.
  • The government could not meet its burden of proving … that restrictions on ads for all
    types of beverage alcohol would “directly and materially advance” the
    government’s interest.
  • Since non-speech means exist to reduce underage drinking, the government could not meet
    its burden of proving that a restriction on speech was “not more extensive than is
    necessary” to achieve the government’s asserted interest.

While current regulatory efforts may move forward, it is vital to keep clearly in mind
the historical and constitutional context in which these issues arise. When this context
is considered, the FCC’s lack of jurisdiction becomes evident. Moreover, the notion of any
arm of government restricting or banning truthful and non-misleading liquor advertisements
appears indefensible on constitutional grounds.

From Alcohol Advertising on the Air: Beyond the Reach of Government? by Robert
M. O’Neil, The Media Institute, 1997.