Download Can the First Amendment Save Controversial Packaging?

Can the First Amendment Save
Controversial Packaging?
Janet M. Evans
Federal Trade Commission
Presentation for NABCA Legal Symposium
March 12, 2013
Background
 44 Liquor Mart: Supreme Court struck down a state ban on
alcohol price advertising, reasoning that the 21st Amendment
limits the effect of the dormant commerce clause on a state’s
regulatory power over the delivery and use of intoxicating
beverages within its borders, but it does not license states to
ignore their other obligations under provisions of the
Constitution such as the First Amendment.
» 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)
What do you mean by controversial?
 Offensive or indecent? Liquor authority
decision to ban product with offensive label
depicting of frog “giving the finger”
overturned.
 Second Circuit ruled that the label
constituted commercial speech, concerned
lawful conduct, and was not misleading.
The ban failed the Central Hudson test of
“materially advancing” a state interest in
protecting children from vulgarity because it
made “only a minute contribution to the
advancement of a state interest” given
the wide currency of vulgar displays
throughout contemporary society.”
• Bad Frog Brewery , Inc. v. NY State Liquor
Authority, 134 F.3d 87 (2d. Cir. 1998)
What do you mean by controversial?
 Deceptive? Under Central Hudson,
commercial speech that is deceptive or
misleading is not entitled to protection
under the First Amendment.
 Deception was the basis of the FTC’s
action regarding Four Loko. Our
complaint alleged a deceptive “single
serve beverage” claim due to a
combination of ad depictions, retail
placement, and packaging
• Phusion Projects LLC, FTC Docket C-4382
(2013)
What do you mean by controversial?
 Due to the size and composition of the package only, and not
due to any aspect of the label?
 United States v. O’Brien: Supreme Court decision upheld a law
prohibiting the destruction of a draft card, ruling that when the
government interest is unrelated to the suppression of free
expression, and the “speech” and “non speech” elements are
combined in the same course of conduct, a sufficiently
important governmental interest in regulating the non speech
element can justify incidental limitations on First Amendment
freedoms.
» 391 U.S. 367 (1968)
Analysis:
 A state regulation that prohibited introduction of alcohol
products into the state solely due to the size and composition of
the package, and not because of the label, would probably
survive scrutiny under the First Amendment.
 But: Any new state law or regulation requires substantial
resources to adopt and implement. Is this the best allocation of
limited resources?
Back to Basics: Alcohol Labeling
Benefits
 NIAAA urges consumers to count their drinks
• http://rethinkingdrinking.niaaa.nih.gov/
 Prevention authorities urge parents to talk to
their kids about underage drinking.
• Alcohol Facts labels would give them concrete
information to work with.