CEI is back in federal court. On October 29th, CEI filed suit against the Bureau of Alcohol, Tobacco and Firearms (ATF) to challenge the agency’s prohibition against truthful statements concerning the health benefits of moderate drinking on alcoholic beverage labels and advertisements. Consumer Alert, a non-profit consumer advocacy group with an interest in protecting the free flow of information to its members, is also a party to the suit. This action culminates a nearly one and one-half year effort to get ATF to stop censoring the facts about moderate alcohol consumption.
In 1995, CEI petitioned the agency to allow truthful health statements on labels and advertisements. Several months later, CEI conducted a poll which showed a high level of public ignorance about the link between moderate drinking and lower heart disease. CEI even printed and distributed labels of our own mock vintage, “Vino Veritas (Freedom of Speech Wine),” which include a health statement. Thus far, ATF has simply stonewalled.
Now, they are legally required to respond to the lawsuit within 60 days. ATF is still fighting the reality that moderate drinking reduces the risk of contracting heart disease, the leading cause of deaths in adults. More than 100 studies establishing the connection between moderate alcohol consumption and substantial reductions in cardiovascular risk and overall mortality have appeared in the New England Journal of Medicine, the Journal of the American Medical Association, the British Medical Journal, and others.
Among medical researchers, the facts are no longer in doubt. But the ATF bureaucrats who regulate alcoholic beverage labels and advertisements can’t handle the truth. They don’t want the public to know that there could be anything good about drinking. The issue has been popularized by the media, however. In particular, CBS’ 60 Minutes has done two stories on the so-called “French Paradox” — the fact that the wine-loving French have a higher dietary fat intake but are less likely than Americans to suffer from cardiovascular disease. Still, most Americans are uninformed.
CEI’s 1995 poll found that more than half the respondents were unaware of the health benefits associated with moderate drinking. Of those that were aware, many mistakenly believed the benefits could be derived only from red wine, the focus of the 60 Minutes segments. However, the positive association has been found with all types of alcohol. Putting this information on alcoholic beverage labels and advertisements would increase the level of knowledge.
A Federal Trade Commission study demonstrated that the benefits of fiber in cereals, though well established medically, were largely unknown to the general public until the information started appearing on product labels. The increase in knowledge was greatest for economically and educationally disadvantaged individuals, who are less likely to read health related publications, and for whom labels and ads are an important source of information. The same would likely be true in the case of moderate drinking and heart disease. Nonetheless, the ATF, which has authority over the content of alcoholic beverage labels and advertisements, has steadfastly refused to allow any health statements whatsoever. CEI petitioned ATF to allow such statements in May of 1995, and included the following language as an example of what should be permissible: “There is significant evidence that moderate consumption of alcoholic beverages may reduce the risk of heart disease.”
Nearly one and one-half years later, ATF has yet to respond. Consumer Alert has written ATF in support of our petition, also to no avail. As one industry insider said, “ATF will do nothing on health claims unless somebody sues them.” So CEI did. CEI’s suit contends that ATF’s suppression of the facts about the benefits of moderate drinking violates the First Amendment. Supreme Court precedent on this point is very favorable. The Court has consistently held that the First Amendment applies to so-called commercial speech. In just the past two years, the Court has heard two cases involving the First Amendment and limitations on alcoholic beverage labeling and advertising. In both, all nine justices ruled that such communications are Constitutionally protected. In Rubin v. Coors Brewing Co., the Court ruled that Coors had a First Amendment right to put alcohol content information on beer bottles and cans. ATF had sought to ban such information.
More recently, in 44 Liquormart Inc. v. Rhode Island, the Court struck down a Rhode Island law banning price advertising by liquor stores. The main argument ATF has offered up in support of its position is that health statements are misleading “unless they are properly qualified, present all sides of the issue, and outline the categories of individuals for whom any positive effects would be outweighed by numerous negative health effects.”
In effect, ATF would require health statements to be followed by detailed caveats explaining every conceivable reason why someone should not drink. ATF admits that it is “extremely unlikely that such a balanced claim would fit on a normal alcoholic beverage label” — thus their position is a de facto ban. Similar arguments about the incomplete nature of commercial speech have been rejected by the Supreme Court. In the 1977 case of Bates v. State Bar of Arizona, the Court held that:it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision. Moreover, the argument assumes that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. ATF’s reasoning relies heavily on the assumption that the public cannot be trusted with the facts. Paternalism, though popular with ATF and other regulatory agencies and Naderite nanny groups, has been dismissed as an unacceptable rationale for censorship.
In 44 Liquormart, Justice John Paul Stevens declared that “the First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” In addition to having the facts and the law against it, the ATF is clinging to a policy that has been abandoned by other federal agencies. The Department of Agriculture and the Department of Health and Human Services, in their new edition of the Dietary Guidelines for Americans, acknowledged the health benefits of moderate drinking, stating that “current evidence suggests that moderate drinking is associated with a lower risk for coronary heart disease in some individuals.”
Under federal law, the Dietary Guidelines “shall be promoted by each Federal agency in carrying out any Federal food, nutrition, or health program.” Rather than “promote” the potential health benefits of moderate alcohol consumption, ATF has chosen to suppress them. Indeed, pasting pages of this document on a bottle could land a winemaker in jail. CEI’s suit is now pending in the United States District Court for the District of Columbia. Stay tuned for further developments.
–Ben LiebermanContact Ben Lieberman at [email protected]