July 18th, 2007

Court Rejects Lawsuit Over Alcohol Ads

By Jim Provance
Toledo Blade

A federal appeals court yesterday threw out class-action lawsuits filed by parents in Ohio and Michigan who claimed alcohol industry advertising targets their children.

In a decision mirroring lower-court rulings in similar cases, the Cincinnati-based U.S. 6th Circuit Court of Appeals said the parents could not sue because they failed to show that their children had illegally purchased beer or other alcohol because of the advertising, and could not point to specific other youths who have.

In the highest federal court to rule on the issue to date, the three-judge panel noted it’s already illegal in both states for minors to buy alcohol or for someone to sell it to them. The parents sought to bar such advertising as well as to recover the money children have spent on alcohol.

“If outlawing the actual sale and purchase is insufficient to remedy the alleged injuries ... then outlawing mere advertis-ing must be insufficient as well,’’ Judge Alice M. Batchelder wrote.

“If these plaintiffs are convinced that alcohol advertising [i.e., First Amendment commercial speech] should be outlawed, then the means must be by legislation or constitutional amendment, not judicial fiat.”

The suits targeted the likes of Anheuser-Busch, Coors, Bacardi, Miller, Zima, and other domestic breweries, distilleries, and importers as well as The Beer Institute trade association.

The parents accused the industry of using cartoons, clothing, toys, and other means to target those too young to legally buy their products.

The allegations are similar to those previously leveled against the tobacco industry, but unlike those suits, the alcohol-related litigation has failed to gain traction.

Courts in states such as California and Florida have dismissed similar class-action lawsuits.

In fact, U.S. District Court in Cleveland went further than the issue of standing when dismissing the Ohio case.

“This court is aware of no legal authority that would support restriction of a private party’s freedom of speech and expression under the theory that the expressed ideas interfere with a parent’s right to make decisions regarding their children’s upbringing,” wrote District Judge Donald C. Nugent.

“Parents have a right to make fundamental decisions about a child’s upbringing, but they have no legal right to prevent other private parties from attempting to influence their children,” he wrote.

Calls seeking comment from various attorneys representing the parents were referred to Virginia attorney David Boies, but he did not return calls.

Lisa Joley, Anheuser-Busch vice president, applauded the decision.

“Preventing illegal underage drinking is an important societal goal, but it is achieved in family rooms - not courtrooms - by restricting youth access to alcohol,” she said.

“Anheuser-Busch and its wholesalers have spent scores of millions of dollars on a variety of programs to help parents and communities fight illegal underage drinking.”

Jeff Becker president of The Beer Institute, said, “For decades, our industry has undertaken efforts to train retail employees in properly checking identification and taking other measures to prevent illegal underage purchases.

“Our members also provide guidance for parents to have constructive conversations with their children about underage drinking.’’

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