Update: Judge Strikes Down Texas’ Irrational Speech Limits on Beer Promotion

Austin, Texas

Cross-posted by Forbes.com at WLF Contributor site

This morning, Federal District Court Judge Sam Sparks entered summary judgment in favor of the plaintiffs in Authentic Beverages Co. v. Texas Alcoholic Beverage Commission (TABC). A Legal Pulse post last week discussed this unique challenge to Texas’s antiquated and irrational malt beverage promotion rules.

Judge Sparks commenced his opinion by wryly noting that unlike most court cases which are not of general public interest, Authentic Beverages is anything but “dry” and “this Court would never be so foolish as to question the sincerity of Texans’ interest in beer.”
 
What he did question throughout the opinion, however, was what “state interest” Texas sought to advance through the TABC rules and the effort the state’s lawyers made to justify the rules. On the ban on advertising alcohol content, the state could identify no state interest that its rules advanced, and since Judge Sparks was not inclined to “speculate about the interest,” he found a First Amendment violation.  On the gag rule on information about retail locations, Judge Sparks found TABC’s “argument on this point [to be] anemic and unsupported by any relevant evidence.” 
 
As to the beer/ale/malt liquor labeling requirement, Judge Sparks found that unconstitutional as well, but devoted a bit more analysis to the state’s arguments. He agreed that Texas had an interest in informing consumers’ choices regarding a beer’s potency, but agreed with the plaintiffs that the labeling rule utterly failed to advance that interest. He also agreed with the plaintiffs’ suggestion that a simple statement of alcohol content on the labels would be a successful “less restrictive alternative” to the misleading beer/ale/malt liquor wording. He took a deserved rhetorical swipe at the state’s objection to this approach, writing, “TABC’s argument to the contrary is almost insulting in its estimation of the Texas public.”
 
Judge Sparks reserved his strongest criticism of the state’s efforts for the conclusion of his First Amendment analysis:

TABC has almost wholly failed to submit such evidence, and has often failed even to respond to Authentic’s arguments. Whether this failure reflects a tactical error, laziness, an implicit concession that the Code cannot withstand constitutional scrutiny, an erroneous assumption that TABC is entitled to special treatment, or a mere oversight, the Court cannot say.”

While it is unclear today whether Texas will appeal its loss on the First Amendment issues (or if the plaintiffs will appeal their loss on the 14th Amendment issues), it’s hard to imagine how TABC could prevail on appeal. Perhaps the state will cut its losses (and save the taxpayers money), swallow its judicial medicine, and finally conform Texas law with producers’ and consumers’ constitutional rights.

Addendum: We commend to you a great compilation of  the opinion’s witty lines, “Sam Sparks’ Greatest Hits“, by Texas craft brewer Scott Metzger.

Overlooked Provisions in Appropriations Bill Bring Sunshine to ObamaCare Health Fund

Cross-posted by Forbes.com at WLF Contributor Site

For those concerned with the federal government’s desire to influence what Americans choose to eat and drink, one particular provision of the FY 2012 Consolidated Appropriations Act has garnered a fair amount of attention. The provision, § 262 of the Act, affects the Nutrition Principles to Guide Industry Self-Regulatory Efforts on child-directed advertising. The Legal Pulse did a post on that last week.

Two other provisions of the Act affecting public health and obesity have been almost entirely overlooked – Sections 220 and 503. Together, those sections will bring a needed dose of sunshine, and a compelled amount of restraint, to the use of funds handed out under § 2002 of the Affordable Care Act (aka “ObamaCare”). That section established the “Prevention and Public Health Fund,” which an August Guest Commentary Legal Pulse post discussed. As noted in the post, concerns had been raised that those administering the Health Fund eyed opportunities to push food police-type solutions, such as sugary-drink taxes. These aren’t nickel and dime amounts of taxpayer funds either; the Health Fund will increase to $2 billion annually by 2015. Continue reading “Overlooked Provisions in Appropriations Bill Bring Sunshine to ObamaCare Health Fund”