The Power of Positive Drinking: Are Alcoholic Beverage Health Claims Constitutionally Protected

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Food and Drug Law Journal http://www.fdli.org/pubs/Journal%20Online/

Volume 58, Issue 3

It seems almost too good to be true that moderate consumption of alcoholic beverages substantially reduces one’s risk of contracting heart disease, but a wealth of published studies have shown it to be an accurate statement. Today, few medical experts dispute that light drinkers, on average, have significantly lower rates of cardiovascular disease and live longer than both abstainers and heavy drinkers. Given that heart disease is the leading cause of death in both adult men and women, the potential benefits for a well-informed public are substantial. Predictably, many alcoholic beverages industry members would like to put “heart healthy” messages on product labels and advertisements; however, the federal government has blocked nearly every such attempt. The Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB), which has authority over alcoholic beverage labels and advertisements, asserts that any health-related claim would be misleading unless it detailed the risks of heavier drinking and explained every category of individual unlikely to benefit. The agency admits that a statement meeting its standard would almost certainly be too wordy for practical use in labeling or advertising, but insists its policy is not a ban and does not violate the First Amendment.

Recent commercial speech case law casts doubt, however, on the constitutionality of so broad a restriction. The legal precedent strongly suggests that there is a First Amendment right for producers to use, and consumers to read, accurate summary statements about moderate drinking and health on alcoholic beverage labels and advertisements.