17. Marketing on College Campuses

Alcohol marketing strategies for college campuses that promote or tend to promote the use of alcohol by youth should be opposed, and government action should be encouraged, if necessary, to permit cooperative activity toward ending these practices.

At its field hearings, the Advisory Commission heard repeated testimony criticizing youth-oriented alcohol advertising in college newspapers and marketing practices directed specifically at the college age group.472 As described to the Advisory Commission, the alcohol industry, particularly the brewers, not only advertises heavily in college newspapers, but also has produced college concerts and provided low price, and at times free, promotional products to college groups.473 Critics of these college promotional activities note that the brewers have also employed paid campus representatives and have sponsored "spring break" activities.474 It is clear that one motivation behind such activities is the huge potential future market represented by these youthful purchasers in the college age group.475 As with the media alcohol advertising issue, college alcohol advertising implicates several concerns. These concerns include, among others, the special susceptibility of the college population to such advertising, the high incidence of alcohol-related health problems and accidents in this age group, and the illegality of alcohol consumption by college age youths in the now 27 jurisdictions with a minimum drinking age over 18 year s.476

There is evidence of increasing concern regarding the effects of college marketing. For example, on April 16, 1985, the Michigan Liquor Control Commission held a public hearing to consider a proposed rule to ban promotion of alcoholic beverages on Michigan college campuses.477 The Michigan proposal is scheduled for additional hearings and there have already been proposed amendments to permit exceptions for some industry activities such as advertising in college newspapers, responsible drinking campaigns and charitable contributions." Meanwhile, other liquor commissions and campus authorities in Massachusetts, South Carolina and elsewhere have begun to question campus alcohol advertising and promotions.479

The National Council on Alcoholism (NCA) has issued its own Prevention Position Statement on Alcoholism and Alcohol-Related Problems as it Relates to College and University Campus Alcohol  Advertising. The NCA statement calls for "the elimination of alcohol advertising and promotion in all forms from university and college campuses," noting that alcohol consumption on college campuses has been implicated in lowered school performance, vandalism, automobile and other types of accidents, illness and suicide.480 On the federal level, officials of both the FTC481 and the BATF482 have recently indicated their growing concern over the college marketing activities of the alcohol industry.

Enforced bans are only one solution to these concerns. Another answer may be the voluntary self-restraint of the producers. One brewer has already voluntarily and unilaterally "pulled back" on its college marketing activities.463 Other alcohol producers have openly criticized their industry's promotional activities directed at college students.484 The industry position, however, has more often been to defend college marketing as being directed at influencing brand identification, or product choice, rather than encouraging youth alcohol consumption.485 Regardless of the motivation, college marketing of alcohol raises many of the same health and safety concerns previously noted in the section on media advertising of alcoho1.480

Alcohol-related problems for youth may be critical to the legality of any cooperative action, or inaction by the alcohol industry regarding college marketing. Even without an actual agreement, the simultaneous, voluntary withdrawal of college ads and promotions might be subject to legal challenge under the antitrust laws.487 If the college advertising ban, however, were regulated and supervised, the liquor industry could also be exempt under the state action exemption to the federal antitrust iaws.488 Alternatively, a college advertising ban could be specifically exempt from the antitrust laws by amending those laws. In either exemption situation, one of the critical issues is the underlying social justification for banning college alcohol marketing. Under Parker v. Brown and Southern Motor Carriers, the states must clearly articulate and affirmatively express the college ban as a state policy and then must actively supervise the ban.4" The potential harm of alcohol abuse would be a critical part of the justification for such a state ban. Similarly, if the alcohol industry were to seek a specific antitrust exemption for a college ad ban, the "clearly paramount social purpose" for a ban would be necessary to justify such an exemption.490

Given the alcohol industry's own expressed concerns regarding youth alcohol abuse,49I the voluntary cessation of college alcohol advertising would seem to be a prime example of corporate social responsibility. Because voluntary restrictions may be feasible, industry support of proposed state or federal rules prohibiting such marketing would seem appropriate to cope effectively with the growing concern regarding alcohol abuse on our college campuses.

472See, e.g., testimony of Delores Napper, Atlanta.

473See testimony of Judge Leon Emmerson, Los Angeles.

474Testimony of Delores Napper, Atlanta. See also testimony of Martha Baker, President, National Council on Alcoholism, supra note 386.
475Id.

4765ee ei testimony of Delores Napper, Atlanta; See also the recommendation and report regarding the 21 minimum drinking age.

477Goldberg, Plan to Ban Liquor Ads on Campuses Cause Stir, Detroit Free Press, (Feb. 19, 1985).

4781he Michigan proposal is attached hereto as Appendix C. See also opening remarks of Patricia J. Knox, Chairperson, Michigan Liquor Control Commission, April 16, 1985.

479Roberts, Controversy is Rising Over Beer Promotion on College Campuses, The Wall Street Journal, Jan. 30, 1985, at 15.

4801d.

481see, fzg., Dissenting Statement of FTC Commissioner Patricia P. Bailey, supra note 429, at 3, noting in particular:
...(5) various beer companies promotions on college campuses involving chug-a-lug contests; and (6) various advertisements for alcoholic beverages in college publications in states where the drinking age is 21.
...The last two promotional practices encourage young people to drink alcohol in ways that are dangerous or in situations where it violates state law and public policy. Clearly, such promotional techniques could constitute deceptive or unfair practices and deserve further analysis by the Commission.
See also Henderson, supra note 425, at F1:
FTC chairman James C. Miller, III said some ads 'are close to the margin' of legality. He cited beer ads and promotions that appear aimed at college students and urged beer advertisers to 'clean up their act.' Id. at F7.

482See Hume, Feds Rap Beer Promo Tactics, Advertising Age, Nov. 1, 1984, at 18.

483In a conversation on April 15, 1985 with Ellen S. Teller, Esq., Project Consultant to the Advisory Commission, William Weatherston of Stroh's confirmed that his company had decided to cease sponsoring some college events and was evaluating its other activities in areas where there has been concern expressed.

484Sobczynski, Trouble is Brewing on Campus, Advertising Age, Jan. 16, 1984, at 23.

4851d., See also, testimony of Donald B. Shea, Esq., Los Angeles.

4865ee the recommendation and report on media advertising.

4875ee Letter, supra note 399. Mr. DeLuca also commented on the antitrust issue as follows in his prepared statement to the Senate Subcommittee on Alcoholism and Drug Abuse on February 7, 1985:
In 1977 the Wine Institute requested permission of the Federal Trade Commission to enter into negotiations with media organizations, and vintners outside of California, to extend the California Code to the remainder of the industry. The FTC withheld permission on antitrust grounds. We subsequently proposed to the Bureau of Alcohol, Tobacco and Firearms that our Code be made mandatory for all vintners, both American and foreign. This is now under consideration. Id. at 5.
See the recommendation and report on media advertising for background on the BATF regulation proposal.

488See•1eg Parker v. Brown, 317 U.S. 341 (1943); Southern Motor Carriers v. U.S., 105 S. Ct. 290 (1985). See also, the companion case of Town of Hallie v. City of Eau Chaired, No. 82-1832 (decided March 25, 1985) (this case may permit municipalities to act under this state action exemption when they do so pursuant to state regulation and supervision) cf. Cal. Retail Dealers Ass'n v. Medical Alum. Inc., 445 U.S. 97 (1980).

489The proposed Michigan Liquor Control Commission rule banning college alcohol marketing, supra, could be a case in point on the issue of what constitutes a Michigan state policy. After hearings, any rule promulgated by the Commission must be reviewed and approved by a joint committee of the Michigan state legislature before enforcement can begin.
490see 1   Jan. 1979 Report of the President's Nat'l Comm. for the Review of Antitrust Laws and Procedures at 17. See also, Business and the Law, Joint Research: Barriers Fall, N.Y. Times, April 23, 1984, at D2.