Drug Abuse

16. Media Ads

Concern should be expressed about media programming which glamorizes or promotes the use of alcohol or drugs by youth. Advertising of alcohol which is directed at youth should be opposed. Appropriate entities should be encouraged to continue research and other efforts to limit the effect which media programming or advertising has upon the use of alcohol or other drugs by youth.

The issue of the effects on youth of alcohol advertising over the broadcast media was thoroughly examined, considered and debated at the Advisory Commission field hearings and meetings.375 There were widely divergent opinions on advertising and its effects expressed by the media broadcasters,376 the alcohol producers (specifically the brewers and vintners who advertise over television and radio stations and networks),377 and a number of the leading critics of such advertising.378 In addition to this testimony, the Commission received and reviewed extensive current scientific, economic and legal materials from various interested parties concerning alcohol advertising.379 Finally, in its own review and deliberations, the Commission considered a wide range of evidence, opinions and proposals on this particular issue before making its recommendations on alcohol advertising.

Notwithstanding these contested matters, however, there appears to be a broad consensus developing on one fundamental issue in this area. No one involved, including the broadcasters, alcohol producers, and advertising critics appears to favor any media advertising that would demonstrably tend to stimulate the wave of youth alcohol and other drug problems.380

With regard to this issue, there presently exists an opportunity to fashion workable compromises and coalitions across the spectrum of interests represented. There is a clear mandate to do so. According to the Harris polling organization, 57 percent of the public favors banning alcohol advertising from the broadcast media.38I The publicity surrounding the petition to the President and Congress by Project S.M.A.R.T. (Stop Marketing Alcohol on Radio and Television) is yet another indication of the increasing level of public concern.382 Similarly indicative are the legislative and administrative proceedings on alcohol advertising which will be described more fully infra.383 Each of these public concerns demonstrate that alcohol advertising is undeniably a national issue. This recommendation expresses the ABA's own concern and opposition in principle to such advertising and its possible effects on youth. This recommendation further urges that appropriate entities continue in their efforts to limit the effects of this advertising upon youth. This recommendation, however, expresses no preference for any particular reform or proposal. For the moment, the design of a specific remedy, if any, should be left to further public debate and reflection, and to the legislative and administrative process.

2. The Alcohol Advertising Issue

As set forth in the extensive testimony and written evidence submitted to the Advisory Commission, the critics of alcohol advertising are primarily concerned with the glamorization of alcohol and other drug use, and abuse, without any realistic depiction of these drugs and their many attendant dangers and serious health consequences.384 The advertising critics also voiced their concern about the pervasiveness of the media advertising of alcohol, particularly with regard to sports and other programs with large youth audiences, and the perceived effects on youth who are particularly susceptible to alcohol and other drug problems.385

In addition to the broadcast media's portrayal of alcohol through advertising, the Advisory Commission also heard several criticisms of the way in which alcohol and other drugs are being depicted on television programming generally.386 These criticisms are directed at the frequency with which social drinking is shown on programs that are particularly attractive to younger viewers.387 Some members of the entertainment industry have become involved in an effort to reduce the amount of drinking in programming and to show alcohol use only when necessary for artistic purposes.388 The alcohol advertisers and producers have questioned both the statistics and generalizations on the issue of alcohol programming.389 The controversial issues involved in alcohol advertising and television programming overlap to some extent, but in other ways, they are very distinct.'" However, when the glamorization and unrealistic portrayal of alcohol and other drugs is the concern, the issues are very similar.

On either side of the advertising and programming controversy there is no denial of the enormity of youth alcohol and other drug problems.391 Similarly, the impact of television on youth is increasingly being documented.392 The dollar amounts and frequency of alcohol advertising are a matter of public record. Regardless of whether one chooses data from the broadcast industry, the alcohol producers or the critics, the amounts involved exceed $750 million annually.393 As the broadcasters and producers have noted, the alcohol advertising revenue is a si nificant factor to the networks and many stations throughout the country.3

The broadcasters and alcohol advertisers maintain that media advertising of alcohol is legal and is largely directed at brand selection, rather than encouraging increased consumption or abuse by anyone, especially the young.395 The broadcasters and alcohol producers contend that they are responding to the youth alcohol problem by self-rezulation through their own alcohol advertising codes and standards396 which already limit various aspects of their advertising, and by their youth driver education and other alcohol moderation efforts directed at youth.397 The Wine Institute, U.S. Brewers Association, and Distilled Spirits Council of the United States (DISCUS) have all promulgated voluntary advertising codes which inter alia regulate the broadcasting of alcoholic beverages. These codes, for example, prohibit the depiction of excessive drinking or intoxication, establish the minimum ages of advertising actors, and prohibit the showing of dangerous activities in connection with alcohol consumption.398

The broadcasters formerly had radio and television codes regulating the advertisement of beer and wine products.399 With the dissolution of those codes, the major networks and individual stations now contend that they utilize commercial standards to screen alcohol advertisements before they are broadcast in order to ensure that they are tasteful and non-deceptive.400 As will be more fully discussed infra, these voluntary efforts can be viewed as at least one alternative to any of the proposed legal or administrative reforms being suggested as remedies to the potential effects of alcohol advertising.401

Whatever the proposed solutions, however, it is apparent that the debate over the advertising issue has produced at least two highly emotional issues that appear to be in direct conflict. On one side, there is the serious concern over increasing youth alcohol problems as a national issue and, on the other, the shadow of a new prohibition with its denial of what some view as a basic right.402 It is hoped that some common ground between these two extremes is the reality, and that neither must ultimately prevail in order to remedy the problem.

3. The Proposals for Reform

Coming from a variety of sources, a series of proposed media reforms of alcohol advertising have been made, ranging in scope from one end of a continuum of restrictiveness from the greatest (a) to the least restrictive (d), as follows:

(a) An enforced absolute ban on all broadcast media advertising of alcohol.

The Project SMART petition is in the vanguard of this proposal at present. There are already state and local examples of such bans as well as several foreign countries with absolute prohibitions on such advertising in law or in practical effect.403 The closest precedent for such a proposal is the existing, self-imposed ban on distilled spirits media advertising and the tobacco advertising ban.404 This degree of restriction raises the most complex legal questions surrounding the constitutionality among the various proposed reforms. There are, however, three leading cases involving such bans which have not ultimately decided the issue.405

(b)    Time and manner restrictions on media alcohol advertising.

Time and manner restrictions have been proposed by several critics of alcohol advertising.406 There are existing precedents among the media practices with regard to children's programming and adult material. The particular area of concern over alcohol advertising centers around sports events and other programming which attracts large youth audiences.407 In addition, another concern is the sheer volume of such advertising during prime time television.408

(c)    Required equal-time or counter advertising.

The model for this proposed reform is the "Fairness Doctrine" of the Federal Communication Commission (FCC).409 Because of the continued legal validity of the rule, some critics have proposed extending it to alcohol advertising as it was applied earlier to cigarette advertising which then resulted in a self-imposed ban.410 The doctrine itself has its own critics who argue that its application to alcohol as a public issue would be inappropriate and would in turn create an unwieldy precedent for enforcement against other legal products and issues.411 There are legal precedents on both sides, and recent legislative and agency considerations of this issue are discussed infra.412

(d) Required warning labeling on all alcohol products and on all alcohol advertising.

This option has been suggested due to the already well-documented serious health hazards relating to use of alcohol by pregnant women (Fetal Alcohol Syndrome)413 and by other particularly vulnerable groups, such as children of alcoholics.414 An increasing number of localities already require health warnings concerning alcohol.414 The other serious health issues of alcohol include: dependence, heart and liver disease, cancer and a wide range of other physical and psychological dangers, as well as increased risk of accidents, disabling injuries and suicide.415 Besides tobacco, there are numerous other precedents for both labeling and advertising warnings for dangerous albeit, legal products.417 The effectiveness of such proposals is one area of concern as is the level of proof required for warnings of the dangers of each product.418

Analysis

The arguments for and against each of the alcohol advertising proposals are often inextricably bound up with the resolution of other issues, in addition to the basic underlying issue of the problem of alcohol itself.419 The debate, however, is no longer concerned with whether there is a serious youth alcohol problem, or whether there should be alcohol advertising if it contributes to that problem. Rather, the issue is whether any steps can be taken which will help alleviate youth alcohol and other drug problems. The options include the proposed reforms and possibly others as well.

The Commission's view is that the growing number of research studies,420 the legislative and administrative record421 and other still developing evidence concerning alcohol advertising422 all support the consideration of the possibility and propriety of various remedial measures. While still more research and deliberation is needed, the mandate for proceeding with a study does not require rendering a final decision at this time favoring any particular proposal or remedy.

4. Current Legislative and Agency Proceedings

On February 7, 1985, the U.S. Senate Subcommittee on Alcoholism and Drug Abuse, Committee on Labor and Human Resources, chaired by Senator Paula Hawkins (R., Fla.) held a hearing on the issue of alcohol advertising in the broadcast media. The Committee also heard testimony from the broadcasters, producers, critics, as well as leading advertising researchers and regulators.423

This hearing was not the first on the issue of alcohol advertising. Additional Congressional hearings were held on May 2, 1985, before the House Select Committee on Children, Youth, and Families, chaired by Representative George Miller (D., CA) and on May 21, 1985 before the House Subcommittee on Telecommunications, Consumer Protection and Finance chaired by Representative Timothy Wirth (D., Col.).424 The questions to be considered by the latter committee will include the effects of alcohol advertising on consumption and the possible application of the Fairness Doctrine in this context. In addition, on April 2, 1985, Representative Howard C. Nielson (R., Utah) introduced H.R. 1901 calling for a study of broadcast alcohol advertising to be completed within one year by the Bureau of Alcohol, Tobacco and Firearms (BATF) with the help of the Federal Communications Commission, the Surgeon General of the Public Health Service, and other federal agencies. The bill has been referred to the Committee on Energy and Commerce.

Until recently, the Federal Trade Commission (FTC) was in the process of reviewing the "Omnibus Petition for the Regulation of Unfair and Deceptive Alcoholic Beverage Advertising and Marketing Practices" filed by the Center for Science in the Public Interest (CSPI). The petition sought action through FTC rulemaking, investigation and enforcement against broadcast alcohol advertising as "deceptive" and "unfair" under the Federal Trade Commission Act, 15 U.S.C. 45, 52, 55 and regulations. In a letter dated April 16, 1985, the FTC denied the petition in its entirety as to its requests for rulemaking, an industry-wide investigation and/or institution of any enforcement action challenginz the legality of certain specified alcohol advertising campaigns.4z5 The FTC letter stated:

In reaching this decision, the Commission has carefully considered the issues raised in the petition, and the enormous personal tragedy and economic injury connected with alcohol abuse. It (the FTC) has found, however, no reliable basis on which to conclude that alcohol advertising significantly affects alcohol abuse. Absent such evidence, there is no basis for concluding that rules banning or otherwise limiting alcohol advertising would offer significant protection to the public.426

The Commission then deferred to the ongoing BATF proceedings (discussed infra) by stating that "for the Commission ... to engage in rulemaking procedures would be needlessly duplicative governmental action."42/ Finally, the Commission noted the ongoing efforts of other federal agencies, state and local governments and the private sector in conducting public information campaigns, drunk driving programs and coordinating activities.428

FTC Commissioner Patricia F. Bailey filed a dissenting statement criticizing the Commission's decision "not even to engage in some factual inquiry with respect to certain questionable advertisements and practices."429 She specifically noted various alcohol ads involving driving and what appeared to be alcohol abuse, in addition to college marketing promotions and chug-a-lux contests sponsored by brewers and college newspaper advertisers.43u Commissioner Bailey concluded:
Companies that market alcoholic beverages have a keen awareness of the importance of brand loyalty and the benefits of establishing brand loyalty at an early age. Promotions aimed at youth, including those who are under-age, help to establish brand loyalty that can pay dividends well into the adult years of a company's customers.4

The release of the Commission's letter was accompanied by the recommendations of its staff regarding the denial of the petition.432 These recommendations consist of a 52-page review of the petition, the relevant law and scientific evidence, followed by a 53 page appendix entitled "Alcohol Advertising, Consumption and Abuse" prepared by the FTC Bureau of Economics, dated March 5, 1985. The staff does note the various remedies sought by the petition including the ban, counter-advertising and labeling, but the latter two are hardly discussed in the rest of the document which is principally focused on the ban proposa1.433 The scientific evidence on causation is dismissed as inconclusive, or contradictory, yet the staff report does not include any of the more recent studies.454 Nevertheless, the FTC staff concludes that "studies done so far seem to be the conscientious efforts of competent researchers, so the fact that they have not reached definition or even consistent results does not bode well for future studies."435 And further:

When the substantial work is already done and the meager achievements gained in the face of severe methodological problems are combined, it is problematic whether further studies are warranted. It seems unlikely that a more striking result will be achieved than the standard one that the effect of advertising on sales is found to be small or more often statistically insignificant.436

The FTC letter was, therefore, issued without any apparent consideration of the factual record concerning the specific advertising and marketing practices noted and criticized by Commissioner Bailey. CSPI and other petitioners may appeal the FTC denial, subject to the significant burden of overturning the agency's discretion. It can be argued, however, that the record before the FTC was somewhat incomplete in terms of the factual record, the scientific studies, and possible remedies other than an absolute ban on broadcast alcohol advertising. As the FTC letter noted, BATF has pending before it a proposed set of regulations regarding alcohol advertising, including restrictions on the advertiser's use of athletes, celebrities, and athletic events. Also being scrutinized is alcohol advertising's potentially glamorizing aspects, as well as proposals to extend the wine, beer and distilled spirits producers' voluntary advertising codes to other, non-consenting parties.437

The Wine Institute has proposed that the BATF permit the extension of their Code of Advertising Standards to non-signatories such as the other domestic and foreign producers.438 However, there have already been questions raised by the FTC regarding the possible application of the antitrust laws to any coerced adherence to such advertising codes by non-parties. It has been established that even well-intentioned public interest codes and standards promulgated by non-profit industry associations may still result in antitrust liability due to their potential anti-competitive effects.439

The DISCUS Code of Good Practice and the broadcasters' refusal to carry liquor advertising may also soon be under review. The recent Seagrams' national newspaper advertising campaign raised questions about the propriety of the long-standing voluntary bans on broadcast advertising of distilled spirits. Seagrams had proposed broadcast advertising on the equivalency of wine, beer and distilled spirits alcohol content which the major networks have rejected.40 The network's refusal to carry the Seagrams ads may raise both First Amendment and antitrust issues due to the heavily regulated nature of the media and, alternatively, to the complete absence of any government imprimatur by way of legislation, regulation or supervision of the voluntary ban on distilled spirits ads, especially since wine and beer ads are permitted.441

The BATF proceedings began in 1978 when the agency first issued its Advance Notice of Proposed Rulemaking.442 Subsequently, BATF received almost 5,000 comments and 140 citizen petitions regarding its proposed rulemaking.443 Final BATF action has not yet been promulgated.

5. Recent Scientific Studies on Alcohol Advertising

As the issue of alcohol advertising has become increasingly popular and more defined, virtually every public debate has brought forth new studies and counter-criticisms of the pre-existing ones. To that extent, the current controversy has stimulated a new wave of research and abstracts. This new material approaches the question of the advertising of alcohol from a variety of perspectives designed to refute critics of the earlier standard while still defining new directions for further study.444

Recently, the American Academy of Pediatrics issued its own Policy Statement on Children, Adolescents and Television concluding inter alia: "Television conveys unrealistic messages reg_arding drugs, alcohol and tobacco, and indirectly encourages their use."41"
The full impact, however, of these more recent studies has yet to be analyzed in the legislature and courts. The stimulus of public debate over these issues is now being felt increasingly in the academic, professional and scientific research facilities. Where in the recent past, scientific studies were few and hard conclusions to be drawn therefrom even more rare, now the literature on the subject is growing both in sheer numbers and in sophistication. If the legislative, judicial and administrative bodies charged with oversight require a critical mass of data before acting on the issue of alcohol advertising, the current literature is surely fast approaching that level.

6. The Legal Authorities

A. The "Commercial Speech" Cases.

Both the proponents and critics of alcohol advertising rely on the legal precedents established by the commercial speech cases. Some of the basic commercial speech, First Amendment cases worthy of note are as follows: Bigelow v. Virginia, 421 U.S. 809 (1975), (the Virginia "abortion advertising case" that first extended First Amendment constitutional protection to commercial speech); Virginia State Board of Pharmacy v. Virginia Citizens Consumers Council, 425 U.S. 748, (1975) (a commercial speech landmark case relating to advertising of drug price information in a pharmacy); and Central Hudson Gas ck Electric Corp. v.  Public Service Commission, 447 U.S. 557, (1980) (the leading commercial speech case, involving a state ban on gas appliance advertising during the natural gas shortage). Central Hudson resulted in a decision by the U.S. Supreme Court establishing a four-part test for determining the legality of proposed limits on commercial speech.446

Finally, two of the more recent commercial speech cases applying the Central Hudson test in the Supreme Court have been in the area of attorney advertising.447 Both the FTC and the Antitrust Division of the U.S. Department of Justice have strongly advised bar authorities against any similar restrictions on truthful advertising by attorney s.448 The FTC Staff Report is primarily an economic study of the price effects of advertising on legal fees designed to support the agency's prohibition on any advertising ban by the bar.449

The critics of alcohol advertising have contended that these commercial speech precedents are relatively new, still untried legal developments, and that they may not be controlling in this situation because of the more serious health and welfare hazards related to alcohol use and abuse, as opposed to public utilities or lawyer advertising. Further, they argue that even if Central Hudson, et al. are relevant to alcohol advertising, the proposed ban and other proposed restrictions would pass the four-part test.451)

The broadcasters, alcohol producers, their allies and advisers have steadfastly maintained that the First Amendment, as interpreted by the commercial speech cases, prohibits any advertising restrictions on a legal product such as alcohol, so long as the advertising is not false, misleading or deceptive.45I The critics, however, argue that as the proposed advertising restrictions move along the continuum set forth supra, from more to less restrictive, and from providing virtually no consumer product information to providing more such data, constitutionality may become less problematic.

To some extent, the issues of equal time or counter advertising will be reviewed by the U.S. Supreme Court in Pacific Gas & Electric v. Public Utilities Commission, 105 S. Ct. 1840 (1985), where the question presented for review is: "Does an order of a state public utilities Commission violate the First Amendment by compelling a privately-owned public utility to include in its monthly billing envelope funding solicitation messages of a third party?" In its ruling below, the California Supreme Court refused to review the California Public Utilities Commission order requiring the inclusion of the third party mailing by a utility consumer group.452

Finally, as both proponents and critics of alcohol advertising have noted, there has already been a Supreme Court comment, in the context of attorney advertising, on the "special consideration" applicable to proposed restrictions on commercial speech over the broadcast media.453 Thus, the legal stage has already been set for a review of any alcohol advertising restrictions regarding television and radio broadcasting.

B. The Alcohol Advertising Ban Cases - Thus Far

There have already been at least three noteworthy appellate cases on the issue of restricting alcohol advertising. To date, the courts have ruled 2 to 1 with regard to upholding such restrictions, but there is a wide divergence of opinion on what these decisions hold for the future. The advertising critics point to these cases as supporting their arguments regarding the special hazards of alcohol advertising.454 Nevertheless, the broadcasters and producers have found their own grounds for solace in these decisions, supporting their views.455

The first of these cases, Queensgate Inv. Co. v. Liquor Control Commission,456 involved a state ban on liquor retail price advertising. The Ohio Supreme Court upheld the ban under the four-part Central Hudson test noted infra.457 The U.S. Supreme Court then dismissed the appeal by the advertisers for want of a substantial federal question. Moreover, only two Justices dissented from the dismissal, Justices Brennan and Stevens, on the basis that they would have noted probable jurisdiction and heard the case.458 The refusal of the Supreme Court to hear the case has been relied upon by the proponents of alcohol advertising restrictions.459
In the next case, Dunagin v. City of Oxford,460 the state of Mississippi enforced a ban on intrastate media advertising of liquor. The Federal Court of Appeals for the Fifth Circuit upheld the ban as not being in violation of the First Amendment, notwithstanding the admitted absence of scientific proof linking such advertising to alcohol consumption. Dunagin and a companion case were taken to the U.S. Supreme Court by way of petitions for certiorari, which were then denied by the Court.46I

For the alcohol advertising critics, Dunagin quickly proved to be a shortlived victory. In its Dunagin opinion, the Court of Appeals had noted the fact that interstate media were not regulated by the state's ban on intrastate media. In Capital Cities Cable v. Crisp,462 the issue was the effect of a state's attempt to enforce its liquor advertising ban on interstate media, specifically on an out-of-state cable company carrying broadcast wine ads that were prohibited under the state statute. In its opinion, the U.S. Supreme Court held that federal law and federal communication regulation preempted the state's attempt to control the interstate media under its liquor law. The Court, however, specifically noted that it was not deciding the First Amendment question since it was unnecessary given the other deciding factor, federal preemption of state law.4b3

Capital Cities was, in effect, the preliminary bout for the main contest. Virtually every interest group in the alcohol advertising controversy filed a brief amicus curiae in that case, including the broadcasters,464 the alcohol industry,46) and the advertising critics.466 The issue to be decided by the Supreme Court in Capital Cities was where the next battle would be fought. If the states could have regulated interstate media in each of their jurisdictions as they regulated intrastate media under Queensgate and Dunagin, then such one-state restrictions could have been sought in one state after the other. However, since the Supreme Court decided that these states could not control interstate media in the face of federal preemption, the focus of the advertising critics has shifted back to Washington and the Congress and federal agencies.

Thus Queensgate, Dunagin and Crisp were the beginning of the first chapter in the last volume of this scenario. At present, withokkt a federal statute, action by the FCC under the Fairness Doctrine,46/ or other federal agency (the interstate media, such as cable television or satellite super stations) are beyond the reach of the states becausç of the gap left after Queensgate, Dunagin and Capital Cities Cable.468 The current petition by Project SMART to the President and the Congress, and the BATF proceedings are all reflections of this perceived need for a federal remedy rather than state-by-state action. Such a federal remedy based on national concerns is necessary in order to be able to deal effectively after Capital Cities with all alcohol advertising by both intra and inter state media.

C. The Tobacco Ban Precedent

The critics of alcohol advertising point to the tobacco ban as precedent for their proposed restrictions.469 In the testimony before the Advisory Commission and the Congress the tobacco advertising restrictions have been exhaustively described and compared to the alcohol proposals.470 As with so many other aspects of this issue, the relevance of the tobacco ban precedent is very much still in dispute.

Conclusion

For those who must decide the issue, the controversy over restrictive broadcast alcohol advertising is unlikely to fade away. Its continued vitality can be measured by the current petition to the President, Congress and the agencies, current public opinion polls and by the political process which reflects public pressures.47I The issues raised by these reform proposals are far too complex for a "quick fix"; some of the issues may in fact defy any final resolution. However, one issue on which all concerned can agree is opposition to broadcast media advertising which distorts or glamorizes alcohol to youth so as to encourage abuse. That issue, at least, is straightforward and calls for response and agreement due to the tremendous harm being suffered by youth with alcohol and other drug problems.
This recommendation makes no case for any one solution to the broader issue of restricting alcohol advertising. It calls for more serious, thoughtful consideration of the issue of such media advertising and programming's unrealistic depiction of alcohol and its possible effects on our youth. The welfare of our youth in this regard is the Advisory Commission's mandate and the basis for concern about alcohol advertising in the first instance.

 

372See Becker, supra note 370. See also Holien, A Rationale for Development  of HMO Regulation Concerning Alcoholism and Drug Abuse, (1984).

373See Economic Costs to Society of Alcohol and Drug Abuse and Mental Illness: 1980 (report submitted to the Alcohol Drug Abuse and Mental Health Administration by Research Triangle Institute, June 1984).

3745ee Fein, supra note 341. See also Los Angeles County Estimated Expenditure Due to the Misuse of Alcohol 1980-1981, submitted by Raymond A. E. Chavira, Los Angeles.

375The issue of alcohol advertising was raised at all three field hearings. See, e,E., testimony of Al Mooney, M.D., Atlanta; George Hacker, Esq., Princeton; and Brian L. Dyak, Los Angeles.

376Testimony of Richard Wiley, Esq. (National Assoc. of Broadcasters), Los Angeles.

377Testimony of Donald B. Shea (U.S. Brewers Assoc.) and Patricia Schneider (Wine Institute), Los Angeles.

378Testimony of James F. Mosher, Los Angeles; and George Hacker, Esq., Princeton.

3795ee/ ei Mosher and Wallack, Government Regulation of Alcohol Advertising: Protecting Industry Profits Versus Promoting the Public Health,
2 J. Pub. Health Pol'y (Dec. 1981); National Association of Broadcasters (NAB): Summary and Citations of Records Related to Beer and Wine Advertising, (Nov. 1984); Pittman and Lambert, Alcohol, Alcoholism and Advertising (St. Louis 1978); Wallack, Alcohol Advertising Reassessed: The Public Health Perspective; Wallack, The Prevention of Alcohol-Related Problems: Recommendation for Public Policy Initiatives; and Watson, Advertising and Alcohol Abuse, (Ad. Assoc. 1981).

380see/    testimony of Richard Wiley; Donald B. Shea; James Mosher; and Patricia Schneider, Los Angeles.

38IBusiness Week at 2 (Feb. 25, 1985).

3825ee, g., Alcohol on the Rocks, Newsweek at 52, (Dec. 31, 1984).

3835ee infra part 4.

384See eg•t testimony of Timothy McFlynn, Esq., Los Angeles and Dr. Al Mooney, M.D., Atlanta. Both of these witnesses, and others, noted the persuasiveness of alcohol advertising jingles, "buzzwords" or "slogans" among youth. Examples are: "This's for you"; "Bring out
your best"; "There's a style in your life,"; "It's time"; "tastes so nice..., on ice"; "will sell no wine before its time"; and is made the American way." See also Thompson, The Battle is Brewing: A Campaign Against the Broadcasting of Wine and Beer Ads, The Wash. Post, Mar. 24, 1985, at K-1, col. I.

385Testimony of Timothy McFlynn, Esq., Barbara Emerich; Los Angeles. Another related aspect of this problem is the alcohol industry's college marketing practices. See the recommendation and report on marketing on college campuses.

3865ee,    testimony of George Hacker, Esq., Phyllis Scheps, Princeton; and Paul Mones, Esq., Ray Chavira, Los Angeles. See also testimony of Martha Baker, President, National Council on Alcoholism, before the U.S. Senate Subcommittee on Alcoholism and Drug Abuse (Feb. 7, 1985) (Sen. Paula Hawkins, Chr.).

387Id.

388e Stewart, Report of the Program Adopted by the Caucus for Producers, Writers and Directors, Caucus Alcohol and Drug Abuse Committee (1984). See also testimony regarding the Entertainment Industries Council, Inc., Brian L. Dyak, Los Angeles.

389See testimony of Richard Wiley, Los Angeles. See also, testimony of Edward 0. Fritts, National Association of Broadcasters before the U.S. Senate Subcommittee on Alcoholism and Drug Abuse, supra note 388.

3905ee infra part 5.

391See generally the Introduction to these recommendations. See also Weekly Reader, A Study of Children's Attitudes and Perceptions About Drugs and Alcohol (1984) (The Study reviewed children's own attitudes by analyzing a sample of 600 survey sheets from a pool of 15,000 from 3,700,000 students in grades 4 to 12. Sample results revealed that "one-third of students in grade 4-8 believe that drinking alcohol is 'a big problem' among kids their age, and about 40 percent say the same about drugs. In both cases, the percentage rises among high school students." Study, question 7. In all, the study featured 8 questions concerning alcohol and other drug problems.)

392SeeI eg• I Tooth, Why Children's TV Turns Off So Many Parents, U.S. News dc World Report, at 65 (Feb. 18, 1985).

393Newsweek, supra note 382, at 53. But see Wash. Post, supra note 386 ($1 billion annually). One study suggests that, "given current levels of exposure a person under the legal drinking age will be exposed to more than 3000 drinking acts over the course of a year. This does not include the active role modeling of alcoholic beverage advertisements." Stoudemire, Wallack, Hedemark, Frank and Kamlet, Epidemologic, Economic and Clinical Perspectives in the Prevention of Alcohol Dependence and Abuse (1985), at 23-24.

3945ee,    testimony of Edward 0. Fritts, National Association of
Broadcasters, and Stephen K. Lambright, Vice President, Anheuser-Busch Companies, Inc., before the U.S. Senate Subcommittee on Alcoholism and Drug Abuse, supra note 386. But see Gay, Beer Ad Ban Won't Hurt Nets, Ad Age (Mar. 11, 1985).

3955ee,  testimony of Donald B. Shea, President, U.S. Brewers Association, Stephen K. Larnbright, and Edward 0. Fritts, before the U.S. Senate Subcommittee on Alcoholism and Drug Abuse, supra note 386.

396Testimony of Patricia Schneider, Los Angeles. The use of these codes is limited by antitrust considerations. See Letter from FTC to John DeLuca, President, Wine Institute, March 31, 1976, submitted with Ms. Schneider's statement. See also on this issue, the recommendation and report regarding college alcohol marketing practices.

397Id., and testimony of Donald B. Shea, Los Angeles.

398The Wine Institute's Code of Advertising Standards was discussed in the testimony of Patricia Schneider, Los Angeles, and John DeLuca before the U.S. Senate Subcommittee, supra note 386. The U.S. Brewers Association's Guidelines for Beer Advertising was discussed in the testimony of Donald B. Shea, Los Angeles.

399See supra note 396.

4001d.

40ISee FTC Staff Recommendation, infra note 434, at 34-46 on these voluntary, private sector efforts.

4021d and testimony of Timothy McFlynn, Esq., James Mosher, and
Judge Leon Emerson, Los Angeles; and George Hacker, Esq., Princeton.

4035ee, etg., testimony of Donald B. Shea, Los Angeles. See also Winski, Pressures Mounting to Curtail Liquor Advertising, Ad Age, at 1 (July 18, 1983)(state ad ban proposals); National Association of Broadcasters (NAB): Background Material for 'Broadcasters'  Responsibilities: Beer and Wine Advertising, at 3 (Nov. 1984).

4045ee, 24E., testimony of Timothy McFlynn, Esq., Los Angeles; but see part 6(a) infra regarding the tobacco ban.

4055ee infra part 6(b).

406See FTC Staff Recommendations, infra note 434, at 31. (12 letters commenting to BATF regarding prime time restrictions). In addition, the Australian government ban proposed restrictions on alcohol advertising during prime time broadcasts and other peak viewing times of children.

407 Testimony of Al Mooney, M.D., Atlanta.

408Testimony of Barbara Emerich, Los Angeles.

409Testimony of Richard Wiley, Esq., Los Angeles.

410Testimony of George Hacker, Esq., Princeton. See also Welling, What if the Americans Can't Hold Their Beer, Business Week 112 (Mar. 11, 1985).

411 'Testimony of Richard Wiley, Esq., Los Angeles. Proponents of equal-time messages, however, see this as a vehicle to offer public information as to health and safety risks involved with alcohol abuse.

412Rep. John Seiberling (D., OH), has expressed his support in sponsoring legislation which would amend the FCC Act and extend the Fairness Doctrine to alcohol advertising by requiring equal time for advertising health and safety messages.

413Fetal Alcohol Syndrome (FAS) has been widely studied both in the U.S. and abroad, and specific criteria was developed in 1980 to identify the related abnormalities. See, etp HHS, Fifth Special Report to the U.S. Congress on Alcohol and Health, Dec. 1983. That report concludes: "Heavy drinking during pregnancy adversely affects organs and behavioral fetal development and increases the risks of miscarriage." Id. at 78. See also House Joint Res. 324, 98th Cong. 1st Sess. The week beginning January 15, 1984 has been designated "National Fetal Alcohol Syndrome Awareness Week," due to the fact that fetal alcohol syndrome is one of three major cases of birth defects and accompanying mental retardation in the United States. See also Surgeon General's Advisory on Alcohol and  Pregnancy, 11 FDA Bulletin at 2 (July 1981):
The Surgeon General advises women who are pregnant (or considering pregnancy) not to drink alcoholic beverages and to be aware of the  alcoholic content of foods and drugs. (emphasis added)

4I4The Children of Alcoholics Foundation has published statistics indicating that as many as 28 million Americans may be in this group. See, g., Consensus Statement from the Conference on Research Needs and Opportunities for Children of Alcoholics, April 18, 1984. See also Facing Life as Children of Alcoholics, Phila. Inquirer, 31, April 21, 1985 ("Twenty-seven million people have become victims of their parents' alcoholism.") See generally Sexias and Youcha, Children of Alcoholism: A Survivors Manual (Crown, 1985.)

415Lg., alcohol servers in Philadelphia and New York City must now display warning signs related to FAS. Phila. Municipal Ord. No. 96-1984 (July 10, 1984) requires all alcohol servers to post a notice reading as follows:
A healthy baby begins with you: Pregnancy and alcohol do not mix. Drinking beer and wine or liquor while you are pregnant or a nursing mother can be harmful to your baby. For more information, call....
Similarly, the 1983 N.Y.C. Law No. 63 Sec. 569-1.0 requires signs to read as follows:
WARNING: Drinking alcoholic beverages during pregnancy can cause birth defects.
See also testimony of Sheila B. Blume, M.D., Princeton (regarding the American Medical Society on Alcoholism: A Position on Labeling, Oct. 19, 1979.)

4165ee e,g., Testimony of George Hacker, Esq., Princeton.

417Testimony of Timothy McFlynn, Esq., Los Angeles.

418Id. However, the serious health warnings for such risks as Reys Syndrome from aspirin and from phenylalanine in soft drinks are related to very low percentage risks but are required nonetheless. See, etg., testimony of Sheila Blume, M.D., Princeton (3 - 4,000 phenylketonurics).

419Lg., the critics of the alcohol advertisers and alcohol producers continually debate the need for proof of the effects of alcohol advertising on consumption, as well as whether or not such effects are even relevant. See infra part 5. As to the efficacy of warning labels, Mr. McFlynn has urged rotating or changing labels as well as standardized warning lables. See testimony of Timothy McFlynn, Esq., Los Angeles.

4201d.

421See infra part 4.

422See,    Weekly Reader, supra note 391.

423Alcohol Advertising: Hearings Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 99th Cong., 1st Sess. (1985).

424Alcohol Abuse and Its Implications for Families: Hearing Before the Select Comm. on Children, Youth, and Families, 99th Cong., 1st Sess. (1985). See also, Media Images of Alcohol: The Effect of Advertising and Other Media on Alcohol Abuse: Hearings Before the Senate Subcomm. on Alcoholism and Narcotics of the Senate Labor and Public Welfare Comm., 94th Cong., 2nd Sess. (1976) (hereinafter the "1976 Senate Hearings"); Juvenile Alcohol Abuse: Hearings of Senate Subcomm. to Investigate Juvenile Delinquency Before the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. (1978); and The Role of Media in Drug Abuse Prevention and Education: Hearings Before the Subcomm. on Alcoholism and Drug Abuse of the Senate Comm. on Labor and Human Resources, 98th Cong., 2nd Sess. (1984).

425Letter to Michael F. Jacobsen, Executive Director, CSPI, from the FTC, dated April 15, 1985 at I. See Henderson, FTC Won't Restrict Alcohol Ads, Will Review Issue on Case-by-Case Basis, The Wash. Post, April 17, 1985, at Fl: "Any decision to ban or impose new restrictions on alcohol advertising should be made by elected officials rather than the FTC." Id. at F7.

426See Letter, supra note 425, at 2.

4271d.

428Id. at 4. The FTC Staff Report noted that BATF has publicly stated that it will consider the use of athletes, celebrities and athletic events in a forthcoming rulemaking. Id. at 53.

4295ee specifically Dissenting Statement of Commissioner Patricia F. Bailey, Denial of the CSP1 Petition to Regulate Unfair and Deceptive Alcoholic Beverage Advertising and Marketing Practices, at 1 (April 15, 1985).

430_Id. at 2-3. See on this issue the recommendation and report on college alcohol marketing.

431Id. at 4.

432Recommendations of the Staff of the Federal Trade Commission, re: Omnibus Petition for Regulation of Uniform and Deceptive Alcoholic Beverage Advertising and Marketing Practices, Docket No. 209-46 (March, 1985). The recommendations are, however, prefaced as follows:
NOTE: These recommendations reflect the views of the Commission's Bureaus of Consumer Protection and Economics. They do not necessarily reflect the views of the Federal Trade Commission or any of its individual Commissioners.

433Id. at 4-5.

4345ee infra part 5, for more recent studies on broadcast alcohol advertising.

435FTC Staff Recommendations, supra note 432, at 2.

436Id. at 23.

4375ee BATF, Labeling and Advertising Regulation Under the Federal Alcohol Administration Act, 45 Fed. Reg. 83,530, 83,532 (1980). See also the FTC Staff Recommendation, supra note 432, at 34-36 for its discussion of the ongoing, voluntary efforts of the alcohol industry under the advertising codes.

4385ee testimony of John DeLuca, supra note 392.

4395ee,     American Society of Mechanical Engineers Inc. v.
Hydrolend Corp., 456 U.S. 556 (1982) (non-profit industrial standards association held liable for treble damages).

4405ee It's Time Americans Knew the Facts About Drinking, The Wash. Post, April 15, 1985, at A20; The N.Y. Times, April 15, 1985 at A15; The Wall St. Journal, April 15, 1985, at 27; and The Phila. Inq., April 15, 1985, at 8B.

4415ee the issue of requirements for state action antitrust exemptions, recommendation and report on college alcohol marketing practices. See also, Southern Motor Carriers v. U.S., 105 S. Ct. 290 (1985).

44243 Fed. Reg. 54,266 (Nov. 21, 1978).

4435ee statement of James C. Miller, III, supra note 423.

4440n these scientific issues, a list of some of the basic material as well as some of the more recent research on the issue of broadcast media alcohol advertising is as follows: Atkin and Block, CONTENT AND EFFECTS OF ALCOHOL ADVERTISING 1980 (this is the "Michigan Study," that resulted largely from the 1976 Senate Hearings described supra. It was funded by BATF, FTC, NIAAA and DOT); Pittman and Lambert, ALCOHOL, ALCOHOLISM AND ADVERTISING 1978 (This study, subtitled A Preliminary Investigation of Asserted Associations was supported in part by a grant from the U.S. Brewers Association, Inc.); Strickland, Content and Effects of Alcohol Advertising: Comment on  NTIS Pub. No. PI3 82-123142, 45 J. Stud. on Alcohol, at 87 (1984). (This article is a critique of Atkin's Michigan study.) See also Atkin, Hoching and Block, Teenage Drinking: Does Advertising Make a Difference?, 34 J. of Communications at 157 (April 1984); and McCarty and Ewing, Alcohol Consumption While Viewing Alcoholic Beverage Advertising, 18 Int'l. J. of Addiction at 1011 (1983); and Dorn and South, Alcohol and the  Media: A Review and Critique of the 'Effects' Model, 3 Int'l Q. of Comm. Health Educ., at 183 (1982-3). (The authors criticize the emphasis in previous studies on the amount of drinking as a function of advertising versus changes in drinking "styles" as a result of advertising emphasis. This may have equally as serious health consequences as increased amounts. The new brands and line extensions being introduced by the brewers may also reflect this concern.) See Hume, Brewers Enlist  New Brands to Battle Problems, Ad Age (Jan. 31, 1985). But see Estes and Heinemann, Alcoholism, Development Consequences and  Intervention at 85 (2nd ed. 1982). There were other comments, in addition to a reply by Profs. Atkin, Kohn and Smart, The Impact of  Television Advertising on Alcohol Consumption: An Experiment, 45 J. of Stud. on Alcohol at 295 (1984) (This is one of a number of Canadian studies as well as English, Australian and other foreign based research reports on this issue.) More recent articles and studies have included two new studies by different research teams both focusing on the M.A.S.H. television show which was criticized in the 1976 Senate Hearings described supra. See Rychterik, Fairbank, Allen, Foy and Drabman, Alcohol Use in Television Programming: Effects on Children's Behavior, 8 Addictive Behaviors at 19 (1983); and Futch, The Influence of Televised  Alcohol Use on Children's Problem Solving, unpublished Ph.D. dissertation, SUNY Binghamton (1984) (University Microfilms No. 1 8416783). In addition, there are new studies by Prof. Atkin and his colleagues, including: Atkin, Neuendorf and McDermott, The Role of  Alcohol Advertising in Excessive and Hazardous Drinking, 13 J. Drug. Educ., at 313 (1983) and Atkin, Alcohol Beverage Advertising: Its  Content and Impact (1984).

445Any review of this literature is quickly outdated but some journals regularly update their texts and articles. See e,g., Rutgers Center on Alcohol Studies, Alcohol Studies Retrospective Bibliographies - B725, Advertising and the Media (Updated Oct. 1984). See also NAB Summary  and Citation of Research Related to Beer and Wine Advertising, (Nov. 1984.) See also Strickland and Pittman, Social Learning and Teenage Alcohol Use: Interpersonal and Observational Influences Within the  Sociocultural Environment, J. Drug Issues, at 137 (Winter 1984). In this new article, Professors Strickland and Pittman focus on the interplay between teenage peer influence and media exposure to alcohol use.

446These commercial speech cases and the Central Hudson test are summarized and analyzed in: Note, Liquor Advertising: Resolving the Clash Between the First and Twenty First Amendment, 59 N.Y.U.L. Rev. 157 (1984) and Sackett, Alcoholic Beverage Advertising and the First  Amendment, 52 U. Cinn. L. Rev. 861 (1983). The following is the Supreme Court's ''(cont.) explanation of the four part test in the Central Hudson decision:
In commercial speech cases ... a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
447 U.S. at 566.

447 See Bates v. State of Bar of Arizona, 433 U.S. 350 (1977) and In re R.M.J., 455 U.S. 192 (1982) which concludes: "The absolute prohibition on appellant's speech, in the absence of a finding that his speech was misleading, does not meet these requirements." Id. at 207. See also Zauderer v. Office of Disciplinary Council of the Supreme Court of Ohio, No. 83-2166, 53 U.S.L.W. 4587 (May 28, 1985), which affirmed the Court's view of the applicability of free speech protection to advertising. In Zauderer, the Court noted:
Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial government interest, and only through means that directly advance that interest. Id. at 4590.
The Court reversed the lower court's decision upholding bar discipline against a lawyer for soliciting business and for using a drawing in his advertisements. The only parts of the decision below affirmed by the Court were those relating to the discipline imposed on the attorney for certain misleading statements and omissions in the advertisements. Id. at 4595.

4495ee Letter from U.S. Department of Justice, Antitrust Division to State Bar Executives, September 21, 1984 (re: American Bar Association Model Rules of Professional Conduct Concerning Fees, Solicitation and Advertising); and Report of the Staff of the Federal Trade Commission, Improving Consumer Access to Legal Service: The Case for Removing Restrictions on Truthful Advertising (1984).

449See, e.g., Anderson, Birth of Salesman (Am. Bar Found., 1981).

450, g., Letter to Senator Paula Hawkins from Prof. Marc A. Franklin, Stanford Law Professor, Feb. 2, 1985 (describing the commercial speech cases as "a very new area of law that [the Supreme Court] has been developing case by case in context totally unlike the one facing your subcommittee. But the Court has been sensitive to subtle fact differences in the commercial speech cases and to subtle fact differences between broadcasting and other media"). But see unpublished speech by Floyd Abrams, Esq. (Counsel to the NAB et al.), as amicus curiae in Capital Cities v. Crisp, see infra part 6(b), before the Law and Justice Committee, National Conference of State Legislatures, Boston, Mass, July 23, 1984. ("The Supreme Court has never upheld any ban on advertising of a lawful product that was not deceptive".)

451 Testimony of Richard Wiley, Esq., Los Angeles.

452Jurisdictional statement of Pacific Gas & Electric Co., 105 S. Ct. 1840 (1985).

453Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

4545ee, e.g., testimony of George Hacker, Esq., Princeton.

455Testimony of Donald B. Shea, Esq., Los Angeles.

45669 Ohio St.2d 361, 433 N.E.2d 138, (1982) appeal dismissed, 459 U.S. 807 (1982).

457433 N.E.2d at 141.

458459 U.S. 807 (1982). But see, as to the limited precedential value of such a denial, Anderson v. Celebreeze, 460 U.S. 780 (1983).

4595ee, e,g., testimony of George Hacker, Esq., Princeton.

460718 F.2d 738 (5th Cir. 1983) (en banc), cert. denied, 104 S. Ct. 3554 (1984).

46ILamar Outdoor Advertising v. Mississippi State Tax Comm'n, 539 F. Supp. 817, cert. denied, 104 S. Ct. 3554 (1984).

462104 S. Ct. 2694 (1984).

4631d.

464Brief Amici Curiae of the National Association of Broadcasters, American Broadcasting Companies, Inc., CBS, Inc. and the National Broadcasting Company, Inc. (Floyd Abrams, Esq., Counsel of record).

465Brief Amici Curiae of the American Civil Liberties Union and the American Civil Liberties Union of Oklahoma in Support of Petitioners, Capital Cities Cable, Inc.

466Brief of S.A.N.E., Inc. as Amicus Curiae in Support of Respondent, Crisp.

467See supra part 3.

4685ee supra part 3(a).

469See, g., testimony of Richard Wiley, Esq., Los Angeles, and George Hacker, Princeton.

470We have already noted the history of the Fairness Doctrine in the tobacco cases. See also Note, supra note 449, at 184, n. 198 questioning the continued validity of the tobacco ban case, Capital Broadcasting Co.  v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (three judge court), aff'd mem. 405 U.S. 1000 (1972), as predating the commercial speech decisions. Also questioned for the same reasons, is Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968). But see Weiliger, The Constitutional Rights of Puffery; Commercial Speech and the Cigarette Broadcast Advertising Ban, 36 Fed. Com. L.J., at 1 (July 1984).

47IAnother indicator may be found in the amount of recent media coverage of the issue. See, e.g., Beer Today, Gone Tomorrow, CBS Sixty Minutes, May 5, 1985 Ttrle media advertising of alcohol was the first segment of that program).

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