ATF Documents Reveal Ban on Protected Speech
We have previously reported on CEI’s pending lawsuit with the bureau of Alcohol, Tobacco and Firearms (ATF) challenging the constitutionality of the agency’s ban on health claims on alcoholic beverage labels and advertisements (UpDate, November 1996). The overwhelming evidence that moderate consumption of alcoholic beverages reduces the risk of heart disease and lowers overall mortality has, as yet, not been allowed to appear on any product labels or ads.
We expected ATF to argue that its ban on this information somehow complies with the First Amendment. Instead, the agency denied that the ban even exists, asserting that "there has been no indication that there are any industry members interested in using such a claim…." The agency later threw down the gauntlet, arguing that CEI has no legal right to bring this case "unless an industry member has (1) actually attempted to speak on the issue; and (2) been prevented by ATF from speaking."
We thought the agency’s denials were questionable, to say the least. In fact, we have been in contact with representatives of several wineries that tried to use health claims but were thwarted by ATF. In addition, while insisting that it has not rejected health claims, and the agency has steadfastly refused to disclose to the court any relevant documents that would prove or disprove this assertion.
As a result, we filed a Freedom of Information Act (FOIA) request with ATF for documents related to industry attempts to use health claims. Lo and behold, we received no less than 13 agency rejection letters of specific health claims from wineries and brewers. Among the silenced health claims are:
• the statement, "Having reviewed modern research on the benefits of modest wine consumption, we believe that our wine, when enjoyed with wholesome food will promote health and enhance the pleasure of life."
• the statement, "Several medical authorities say that a glass or two of wine enjoyed daily is not only a pleasant experience but can be beneficial to an adult’s health."
• The use of the phrase "healthy meals," or the use of a heart shape in association with alcoholic beverage products.
• any summary of or reference to the 1991 60 Minutes segment on the health benefits of moderate wine consumption.
Beyond rejecting these and other health claims, ATF threatened some industry members with severe penalties should they pursue their efforts to communicate health information to their consumers. One winery was warned that "any future violations arising from the making of this type of health claim in an advertisement well be dealt with more severely."
ATF told the court that its policy "in no way resembles a ‘ban’ on health claims in labeling and advertising." But, given these documents, which show numerous rejected attempts by industry members to summarize health information, we responded that "a ban is exactly what ATF’s policy resembles."
ATF’s dubious denial of its policy is understandable, given the legal precedent on this issue. Since 1995, the Supreme Court has twice concluded that information on alcoholic beverages labeling and advertising is protected by the First Amendment. In one case involving ATF, the agency took on Coors Brewing Company’s attempt to put percent alcohol content on beer labels. The agency fought, and lost, all the way to the Supreme Court, which had little trouble unanimously holding that such information is constitutionally protected and rejected the agency’s attempt to restrict speech. No wonder the agency keeps trying to deny the existence of a ban on health claims, even in the face of the agency’s own records documenting it.
Ben Lieberman ([email protected]) is a CEI environmental research associate.