Advertising

NYC to Ban Alcohol Advertising on Public Property

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New York City has decided to entirely ban alcohol advertising on any public property, according to MSN.com, following the path of the NYC subway system. Despite this posture, venues that currently sell alcohol will be exempt:

New York City has banned alcohol advertising on city property, citing health risks posed by excessive drinking…

The ban, which takes effect immediately, applies to bus shelters, newsstands, Wi-Fi kiosks and recycling kiosks. Venues that are currently allowed to sell alcohol, such as restaurants, stadiums and concerts halls, are exempt.

Existing ads will be allowed to remain until their contracts end…

A Metropolitan Transportation Authority ban on advertising alcohol beverages on all New York City buses, subway cars and in stations took effect in January 2018.

Other U.S. cities that have moved to ban alcohol advertising on city property include Philadelphia, San Francisco and Los Angeles…

Read more here.

The Constitutional Issues With TTB's Proposed Alcohol Labeling Rules

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Late last year, the Alcohol and Tobacco Tax and Trade Bureau (TTB) issued a proposed rulemaking to reform regulations surrounding the advertising and labeling of alcohol products. Marc Robertson of the Washington Legal Foundation writes for Forbes about the constitutionally suspect parts of the agency’s proposal:

TTB’s efforts to streamline the rules and finally recognize long-standing First Amendment precedents are welcome. But parts of the proposed rule do not adequately protect the commercial speech rights of alcohol-beverage producers and consumers. We’ll focus here (as WLF will in its forthcoming public comment) on the prohibition of statements on labels or in advertisements that are disparaging, false, misleading, obscene, or indecent…

While the TTB’s proposal would prohibit false speech (unprotected under the First Amendment), it also targets truthful commercial speech that may tend to mislead or offend consumers. This provision accords the TTB a great deal of latitude to subjectively judge alcohol producers’ speech. While there is bound to be discretion and subjective review of any agency regulation, the TTB’s prohibition of certain disparaging statements or indecent labels or advertisements goes too far…

In addition to the constitutional concerns with its vague, subjective standards for alcohol labels and advertisements, the TTB must consider the message such paternalistic rules sends to state beverage control boards, which also review alcohol product labels. Such regulators have taken aim at craft beer names like “Dirty Bastard,” “Backwoods Bastard,” and “Raging Bitch,” as well as label images like a cartoon frog with its middle finger extended. Some of those decisions were successfully challenged under the First Amendment, but states would be better off helping their local businesses than forcing them into lawsuits…

The whole article is well worth a read here.

Missouri Retailers Can Now Honestly Advertise

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In the past, we have covered Missouri's tight commercial speech laws. Until last week, an arcane  law had banned alcohol retailers from mentioning specific alcohol prices, even if it was truthful. This not only resulted in vague restrictions on mentioning discounts, but also made it difficult for businesses to compete with others across state boundaries:

"I get calls all the time from stations on the borders of the state," says Mark Gordon, president and CEO of the Missouri Broadcasters Association. "'Can I mention this discount price, or say that?' And they can't. They're competing with stations across state lines, and they don't get a level playing field."...

In legal filings, lawyers for Missouri argued they had a compelling interest in discouraging overconsumption. But the state's laws didn't bar stores from selling alcohol below cost — or even advertising those prices inside the store. It simply banned them from being advertised outside the store...

Read more about Missouri's law here.

It's time to free happy hour in Virginia!

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R Street's Jarrett Dieterle and Christina Pesavento took to the pages of the Richmond Times-Dispatch to argue that Virginia's ban on happy hour advertising goes against the entire idea of happy hour! Happy hour is supposed to be fun, social, and collegial, which all runs counter to prohibiting restaurants from speaking about it. They also highlighted the Pacific Legal Foundation's recent lawsuit challenging the law on First Amendment grounds:

Everyone knows the first rule of happy hour: You have to talk about happy hour.

Unlike the 1990’s movie “Fight Club” — which exhorted participants not to talk about their activities — happy hour has long been synonymous with socializing, networking, and celebrating the end of the long workday.

But in Virginia, talking about happy hour is illegal. Believe it or not, current regulations forbid restaurants from marketing specific drink specials beyond their premises, including on social media. Violations can trigger week-long liquor license suspensions and fines of up to $500.

Fortunately, our system of government provides an important check for laws that restrict speech — the Constitution...

Read the whole piece here.

R Street's Jarrett Dieterle also previously appeared in a video with PLF's Anastasia Boden discussing Virginia's happy hour advertising ban and other crazy drinks laws from around the country.

Breweries Face Class Action Suits for Alleged False Advertising

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In recent years, numerous breweries have found themselves facing lawsuits for alleged false advertising and labeling on their beer products. One prominent recent example is Kona Brewing Company, which features maps of Hawaii (as well as other island-themed images) on its packaging. Because its beer is not actually made in Hawaii, Kona has found itself on the receiving end of a class action lawsuit--even though its beer labels specifically disclose this fact. Greg Herbers of the Washington Legal Foundation writes about the judge's recent ruling in this case, which appears set to go to trial:

"We have been covering a legal action against Kona Brewing Company (now renamed Broomfield v. Craft Brew Alliance), which is one suit in the larger trend of class actions against breweries alleging misleading or false labeling and advertising.  In that suit, Judge Beth Labson Freeman, who sits on the U.S. District Court for the Northern District of California (a.k.a. the “Food Court”), recently ruled on Kona’s motion to dismiss.

Though the court trimmed the complaint, dismissing several of the plaintiffs’ causes-of-action and requests for relief, it held that the crux of the allegations could proceed.  The result is that, through strategic pleading, Kona must spend its time and resources fighting a lawsuit with questionable merits.  Judge Freeman created perverse incentives for future litigants by choosing to become, in essence, a product-packaging regulator..."

Read the whole article here.