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Commercial Free Speech vs. Strength Wars

Occasionally, the government may try to reduce rather than increase information. Just after the repeal of Prohibition over 60 years ago, breweries used the high alcohol content of their beers as a prime selling point. To prevent such "strength wars," Congress banned the listing of alcohol content on beer labels in 1935.

In 1987, Adolph Coors Co. sued for the right to list alcohol content on its beer labels. The federal government opposed Coors, claiming that disclosing alcohol content would set off a beer-strength war.

At the time, potent beers were entering the market successfully. These new "ice" beers have 5% to 5.5% alcohol, compared to light and regular beers that range from 3.2% to 4.8%. The older designation "malt liquor" also indicates higher levels of alcohol than regular beers. In Canada, where brewers regularly list alcohol content, some brews top 7%.

A Justice Department lawyer argued that Coors was pressing the case to boost sales and improve its image. He reported that a Coors distributor handed out cards comparing the alcohol content in its brands to that of rival brews. Justice Department lawyers also offered extensive evidence that they claimed proved breweries were boasting about the "punch" of their malt liquors. In 1995, Anheuser-Busch raised the alcohol level of its ice beer to 5.5% from 5%, apparently in response to competitive pressure.

Strangely, federal law requires that all liquor and wine labels report alcohol content. The government argued that beer labels deserve special scrutiny because they are linked to a "socially harmful activity"—getting drunk.

In 1995, the Supreme Court unanimously found that Coors had a right to commercial free speech. While noting that the government might have a legitimate interest in limiting the strength of beers, the Court concluded that limiting information was not the most appropriate or direct way to achieve that end.

In a concurring option, Justice John Paul Stevens wrote, "The Constitution is most skeptical of supposed state interests that seek to keep people in the dark for what the government believes to be their own good." He concluded that, "I see no basis for upholding a prohibition against the dissemination of truthful, nonmisleading information about an alcoholic beverage merely because the message is propounded in a commercial context."

Immediately after the decision, the nation's leading breweries pledged not to market beers on the basis of their alcoholic kick. It remains to be seen, however, how long this pledge will last.

The ability to compete on strength is limited by advertising restrictions: 40 states ban alcohol-content advertising. In 10 states, however, brewers are required to disclose whether their products are above or below a certain alcohol level, usually 3.2%.

SOURCES: "Beer with a Message and a Bite," U.S. News & World Report, 118(17), May 1, 1995:20; Bettelheim, Adriel, "Coors Wins Beer-Labeling Case Brewer May Advertise Alcohol Content," Denver Post, April 20, 1995:C-1; Kirkland, Michael, "Court: No Ban on Beer Alcohol Listing," Washington News, April 19, 1995; Newsday, "Court OKs 'Strength' Beer Labels," Des Moines Register, April 20, 1995:6; "The Ticker," Daily News, April 21, 1995:Business, 69; "U.S. Supreme Court Boosts Commercial Free Speech," Wine Business Insider, 14(5), April 22, 1995.

© 2003 Jeffrey M. Perloff. Reprinted by permission.

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