Free Speech and Alcohol: How Much Is Too Much?

On February 5th, the Bureau of Alcohol, Tobacco, and Firearms (ATF), approved two wine labels containing the following statements:

• The proud people who made this wine encourage you to consult your family doctor about the health effects of wine consumption;
• To learn the health effects of wine consumption, send for the Federal Government’s Dietary Guidelines For Americans, Center for Nutrition Policy and Promotion, USDA, 1120 20th Street, NW, Washington, DC 20035 or visit its web site: http://www.usda.gov/fcs/cnpp.htm.

On the surface, neither statement seems particularly controversial. The first one, submitted to ATF by Laurel Glen Winery, simply urges consumers to talk with their doctors regarding a health issue. The second, submitted by the Wine Institute, merely refers to a government pamphlet providing dietary advice. Nonetheless, they represent the first time that ATF, which has regulatory authority over alcoholic beverage labels and advertisements, has allowed even an indirect reference to the wealth of published evidence that moderate alcohol consumption has health benefits.

Thurmond bills. However modest, these two approvals have already led to a strong response from Senator Strom Thurmond (R-SC). Within two weeks of ATF’s announcement, he introduced three bills: S. 431, which would transfer labeling authority from ATF to the Department of Health and Human Services (HHS); S. 432, which would raise taxes on wine; and S. 433, which would prohibit the two approved statements or any other new health claims from appearing on alcoholic beverage labels. The first two are apparently aimed at punishing ATF and the wine industry for their role in the approvals. The third is nothing more than censorship.

While Senator Thurmond believes that ATF is allowing too much speech and steering consumers wrong, the truth is that the agency does not allow enough and is keeping important information from the public. ATF has approved these two so-called “directional statements,” which refer consumers to third party sources of information on drinking and health. However, the agency has not changed its longstanding ban on what it terms “substantive health claims,” and has refused to allow any industry member to directly inform consumers, either on labels or advertisements, that moderate consumption of alcoholic beverages has been shown to reduce cardiovascular risk and overall mortality. The Competitive Enterprise Institute and consumer group Consumer Alert are challenging this policy on First Amendment grounds. The case, originally filed in 1996, is still pending in the U.S. District Court.

Alcohol, labels and health – A brief history. Thurmond’s three bills are not the Senator’s first foray into alcoholic beverage labeling. In 1988, he was instrumental in enacting the Alcoholic Beverage Labeling Act, which requires the following warning statement:GOVERNMENT WARNING: (1) ACCORDING TO THE SURGEON GENERAL, WOMEN SHOULD NOT DRINK ALCOHOLIC BEVERAGES DURING PREGNANCY BECAUSE OF THE RISK OF BIRTH DEFECTS. (2) CONSUMPTION OF ALCOHOLIC BEVERAGES IMPAIRS OUR ABILITY TO DRIVE A CAR OR OPERATE HEAVY MACHINERY, AND MAY CAUSE HEALTH PROBLEMS.

The law mandates that this statement appear on all alcoholic beverage labels. In sharp contrast, industry members are not allowed to make any direct reference to the well-established evidence that moderate consumption has substantial health benefits. Over the past two decades, a large number of studies have shown that moderate drinking reduces the risk of heart disease, the leading cause of death in adults, and reduces overall mortality. For example:

• A 1992 study of over 100,000 people published in the Annals of Internal Medicine, states that “lighter drinkers have a lower mortality risk than either abstainers or heavier drinkers, due substantially to a lower risk for death from coronary heart disease.”2
• A 1992 New England Journal of Medicine review article on the major means to preventing heart disease, states that “there is a substantial body of observational epidemiologic evidence to suggest that moderate consumption of alcohol reduces the risk of heart disease.”
• A 1994 study published in the British Medical Journal, concludes that “for most causes of death studied, the mortality was higher in non-drinkers than in light drinkers.”3
• A 1997 study of nearly 500,000 people, conducted by the American Cancer Society and published in the New England Journal of Medicine, concludes that “those who consumed up to one or two drinks of alcohol daily had lower overall mortality than non-drinkers.”5

Despite these findings, and the media coverage they received (including two 60 Minutes segments), most Americans still don’t know the facts about moderate drinking. According to a 1995 CEI survey, only 42 percent are aware that moderate drinking has health benefits, and most of those mistakenly believe the benefits only apply to wine. In fact, the evidence demonstrates that the benefits are associated with any type of alcoholic beverage consumed in moderation.6

Government suppression of health information. For years, many wineries have sought, without success, to obtain ATF approval to communicate this message to their customers. Even the two recent approvals are watered down versions of more substantive health claims that the agency had held up for years. Only after their submitters agreed to remove the word “benefits” and replace it with “effects”, did ATF give the ok.

Direct references to health benefits are still forbidden. For example, the federal government’s Dietary Guidelines, alluded to in the Wine Institute label, states that “current evidence suggests that moderate drinking is associated with a lower risk for coronary heart disease in some individuals.” Yet ATF does not allow industry members to actually put this quote on a label or ad.

Despite the strong support such statements have in the published research, ATF believes that any communication of alcohol’s benefits will mislead the public. Essentially, the agency speculates that the public is incapable of understanding the distinction between beneficial moderation and detrimental excess, and will interpret any health claim as an endorsement of excessive drinking. Senator Thurmond goes further, describing his efforts to ban this information as “important steps toward protecting the health and welfare of all Americans.” However, neither can point to evidence that health statements will actually mislead anyone. Quite the contrary, a recent study conducted for ATF demonstrated that health claims do not have a misleading effect.7

Not only do ATF and Senator Thurmond have the facts against them, but the Constitution as well. A number of recent Supreme Court cases have made clear that the First Amendment protects speech, even in the context of alcoholic beverage labels or advertisements. Indeed, a 1995 case, Rubin v. Coors Brewing Co., the Supreme Court unanimously upheld a brewery’s First Amendment right, over ATF’s objections, to provide percent alcohol content information on bottles and cans.8 With regard to the paternalistic assumption that the public needs to be “protected” from certain messages, Justice John Paul Stevens noted that “the Constitution is most skeptical of supposed state interests that seek to keep people in the dark for what the government believes to be their own good.”9

Conclusion. ATF’s ban on substantive health claims on alcoholic beverage labels and advertisements, and Senator Thurmond’s attempts to block even indirect references to health information, is bad public policy and goes against the spirit of the First Amendment.

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1Ben Lieberman ([email protected]) is a Research Associate at the Competitive Enterprise Institute2Vol.117, pp. 646-54 (Oct.15, 1992).3Vol. 326, pp. 1406-16 (May 21, 1992).4Vol. 309, pp. 911-18 (Oct. 8, 1994).5Vol. 337, pp. 1705-14 (Dec. 11, 1997).6″A National Survey of Public Knowledge Regarding The Health Benefits of Moderate Alcohol Consumption,” prepared by the Polling Company for the Competitive Enterprise Institute, November 1995.7″The Effect of Wine Labels on Public Perception,” U.S. Department of Health and Human Services, Center for Substance Abuse Prevention, January 30, 1998.8514 U.S. 476 (1995).9Id. at 497.