NABCA Can the First Amendment Save Controversial Packaging? March 12, 2013

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NABCA Can the First Amendment Save Controversial Packaging?

March 12, 2013

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May offend someADULT CONTENT

VIEW DISCRETION ADVISED

YOU HAVE 20 SECONDS TO LEAVE THE ROOM!!!!

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Is Commercial Speech Free???

Perhaps No, but pretty Damn Close….

“regulations that entirely suppress commercial speech…must be reviewed with ‘special care,’ and such blanket bans should not be approved unless the speech itself was flawed in some way, either because it was deceptive or related to unlawful activity.”

- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 566, n. 9

http://www.law.cornell.edu/supct-cgi/get-us-cite?447+557

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Commercial Speech Isn’t Free??

Four Prong Test For Supporting Commercial Speech Regulation

• The regulated speech concerns an illegal activity;

• The speech is misleading;

• The government's interest in restricting the speech is substantial, the regulation in question directly advances the government's interest; and

• The regulation is narrowly tailored to serve the government's interest.

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Can the First Amendment Save Controversial Packaging?

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http://blogs.ocweekly.com/stickaforkinit/stacked-wines.jpg

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Commercial Speech Isn’t Free??

Should we outlaw use of an Historical Figure Just because someone may be offended by the sound of his name?????

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Cultural???

Who Knows!!!!!!

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Even Upscale Cognac Gets in the Game!!!

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?

The Vaportini $35

•Vaporizes Alcohol and the Intoxicants are then breathed in through a straw

•Alcohol is ingested directly to the bloodstream through the lungs,

• Fire & Alcohol is Never a Good Thing!!!

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Are We more Interested in being the Moral Police????

Daily Mail Article – January 14, 2013

“Parents’ Horror As New $35 Device Lets You Inhale Alcohol Goes On Sale”

-Nothing more than a media maelstrom of outrage and discontent to drive behavior.

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Daily Mail Article – January 14, 2013

• The article points to no factually based instances of Parental Outrage or even raised concern over the introduction of the Vaportini…

• Is this the Next Joe Camel!!!!!

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• 1988 - Joe Camel is Born and 8% of minors who smoke report Camel as their choice Brand

• In 1998 when the Plug is pulled on Joe Camel the percentage of Minors Choosing Camel Vaulted to an astonishing 9.6%

• Did Joe Camel Really Increase smoking in Minors???? Or…

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Were we just acting like the Moral Police???

Are We Content With Attacking a Symptom of the Problem as Opposed to the Problem Itself???

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Are States pursuing a Joe Camel approach to regulation?

Vermont & Montana

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Sorrell v. IMS Health, 131 S.Ct. 2653 (2011)

Vermont law that restricted the marketing of pharmaceuticals to doctors based on prescription information gathered through data miners

The court shoots down the Vermont law stating ….

“Fear that Speech might persuade provides no lawful basis for quieting it”

The only legitimate rationale for censoring commercial speech are deceptive and fraudulent commercial practices.

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Sorrell v. IMS Health, 131 S.Ct. 2653 (2011)

[The Court] “has reaffirmed the core meaning of the First Amendment : government must trust the marketplace of ideas unless fraud or deception occurs” – Berin Szoka (TechFreedom)

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Regulating Commercial Speech?

A law must be written to specifically fulfill only its intended goals;

Does Montana Accomplish this????

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42.13.201 LABELING AND PACKAGING REQUIREMENTS (1) As a condition of holding a retail license, no retail licensee shall sell, offer for sale, or provide any beer, wine… Alcoholic beverage products are a mature product category, restricted by law to only consumers age 21 and older and who are not intoxicated, and therefore should be marketed in a responsible and appropriate manner

(a) blurs the distinction between an alcoholic and nonalcoholic product by utilizing labeling, and/or primary packaging, and/or containers that emphasize features that are most commonly associated with nonalcoholic consumable products including, but not limited to

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Illegal In Montana??

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Alarming Restraint of Speech??

How Can We Say that the Montana Law is Narrowly Tailored when it would prevent the sale of a Vodka brand that nationally is selling 100,000 Cases?

Those Cases cannot all be selling to minors!!!!!

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Same Fate for Cotton Candy??

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This

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Does Not Equal This…

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Is the Montana Law Narrowly Tailored to meet its goals of making sure that products are not marketed to minors or that they are not deceptively hiding alcohol content…

NOT A CHANCE!!!!!

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There are Legitimate Purposes for Alcohol in a Pouch:

Eco Friendly

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There are Legitimate Purposes for The Evolution of Alcohol Packaging:

Unique Way to Expand Crowded Shelf-Scape

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There are Legitimate Purposes for Alcohol in a Sports Bottle:

Mobile Society

Manufacturers need tobe more flexible and met the demands of the Consumer…

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Sum & SubstancePerhaps this Quote Says it best…

“Advertising and Marketing often get a bad rap from politicians and regulatory activists who typically make a variety of unsubstantiated claims about the negative impact of commercialism on society… “In reality, commercial speech benefits consumers tremendously and deserves protection against regulatory encroachment.”

Adam Thierer – June 26, 2011 Forbes OpEd

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Sum & Substance• Education Should be the first line of defense against

underage drinking; and

• While the Industry should be cognizant of the potential allure of its innovations, this should not deprive the Industry of the broad protections afforded to it under the 1st, 5th & 14th Amendments to the Constitution!!!

• Parental responsibility should supersede governmental regulation;

Documents

NABCA Can the First Amendment Save Controversial Packaging? March 12, 2013