Free (Speech for) Alcohol!: Government Allows Voluntary Nutrition Labels

TTBGuest Commentary

by Stephanie Chipley, a 2013 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

On May 28, 2013, the Treasury Department, via the Alcohol and Tobacco Tax and Trade Bureau (TTB), issued Ruling 2013-2, a temporary, voluntary labeling regulation that aims to help alcohol companies “provide truthful, accurate, and specific information to consumers about the nutrient content of their products on a per serving basis” in “Serving Facts” statements on labels and in advertisements of wine, distilled spirits, and malt beverages. For those companies who choose to use the new labels on their product packaging, the ruling allows the labels to include “serving size, the number of servings per container, and the number of calories and the number of grams of carbohydrates, protein, and fat per serving size.” In addition, companies may include the alcohol content of a product as a percentage of alcohol by volume and a statement of the fluid ounces of pure ethyl alcohol per serving.

TTB’s ruling shows just how far companies’ ability to share truthful information with consumers has come since Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). In Rubin v. Coors, Coors Brewing Company applied to the Bureau of Alcohol, Tobacco and Firearms (BATF) for approval of labels and advertisements that revealed “truthful, verifiable, and nonmisleading factual information about alcohol content in its beer labels.” Id. at 478, 483. BATF rejected the application because it believed that § 205(e)(2) of the Federal Alcohol Administration Act (FAAA) “prohibited disclosure of the alcohol content of beer on labels or in advertising.” Id. Further, BATF argued that “the ban was necessary to suppress the threat of ‘strength wars’ among brewers, who, without the regulation, would seek to compete in the marketplace based on the potency of their beer.” Id. Coors argued that the § 205(e)(2) violated the First Amendment’s protection of commercial speech. Id. Ultimately, the United States Supreme Court held that although the Government had a “substantial interest in suppressing strength wars in the beer market,” the ban nevertheless failed to “directly and materially advance [the Government’s] asserted interest.” Id. at 488, 491. Consequently, the ban violated the First Amendment. Id. at 478. TTB’s viewpoints on allowing companies to share truthful information with consumers has come a long way since Rubin v. Coors, and its recent ruling reflects that change. Continue reading “Free (Speech for) Alcohol!: Government Allows Voluntary Nutrition Labels”

In Attack On Commercial Speech, Law Professor Sadly Supports Selective Rights

censorsip

Cross-posted at WLF’s Forbes.com contributor page

Those who support increased government regulation of free enterprise have been doing quite a bit of hand-wringing lately about purported obstacles to their agenda that are imposed by the First Amendment.  To their way of thinking, this is a faux First Amendment being flacked by powerful businesses intent on undermining the democratic process.  The latest such complaint comes from Columbia Law Professor (and former senior adviser to the Federal Trade Commission) Tim Wu in a New Republic article, “The Right to Evade Regulation: How Corporations Hijacked the First Amendment.”

What such critics fail to confront, however, is that the rule of law requires that constitutional rights be applied in a consistent manner.  Unless Professor Wu is willing to sacrifice his own First Amendment rights, he is in no position to complain when those rights are extended to everyone, including those whose agenda he apparently opposes.

Wu labels as “extreme” a D.C. Circuit decision holding that the First Amendment prevents the government from forcing tobacco companies to include gruesome pictures of dying smokers on their product labels.  Yet in the next breath, he applauds other “compelled speech” decisions, such as the Supreme Court decision that prevents the government from forcing individuals to recite the Pledge of Allegiance.  Continue reading “In Attack On Commercial Speech, Law Professor Sadly Supports Selective Rights”