While the First Amendment provides powerful ammunition to advertisers and publishers in court, if the challenge succeeds, they may find themselves on the wrong side of public opinion amid growing concern over underage drinking.
Representatives from the American Association of Advertising Agencies, the Association of National Advertisers and the American Advertising Federation are lending their support to newspaper publishers from several big Virginia schools, including University of Virgina and Virginia Tech, which are asking the Supreme Court to strike down the Virginia anti-alcohol ad law -- overturning an earlier court of appeals ruling that upheld the law.
In addition to asserting that alcohol ads are protected by free speech, the advertisers and publishers said many readers of college newspapers are old enough to drink alcohol legally. The publishers also say the alcohol ad ban, enforced by the Virginia Alcoholic Beverage Control Board, deprives them of badly needed revenue at a time when other kinds of print advertising are imperiled.
In addition, they argue that underage readers will be exposed to alcohol advertising in other publications, regardless of the college-specific ban.
These legal developments come on the heels of a report from the Center on Alcohol Marketing and Youth at Johns Hopkins' Bloomberg School of Public Health, which found that wine, beer and spirits advertisers have mostly complied with their voluntary commitment to decrease the amount of youth exposure to alcohol ads in consumer magazines.
In 2003, alcohol advertisers agreed to a voluntary standard that included not placing ads in magazines with youth readership comprising more than 30% of the total audience. Activists attempting to reduce underage drinking have supported voluntary industry self-regulation as an alternative to official legal bans, since the latter have a good chance of being struck down on First Amendment grounds.
Total youth exposure to alcohol advertising in consumer magazines declined 48% from 2001-2008, CAMY found, based on its review of 29,026 alcohol-product ads in national magazines, combined with data from the Nielsen Company and GfK MRI, showing the proportion of young readers in magazine audiences. The ads were placed at a cost of $2.7 billion.
However, some brands are definitely more visible than others. In 2008, CAMY found that 16 brands (out of a total 325 advertising in magazines) accounted for half the ads in publications that were more likely to be seen by youth than adults. This list included Patron Silver Tequila, Absolut Vodka, Kahlua Liqueurs, Ketel One Vodka and Jim Beam Bourbon Whiskey.
The last decade has seen growing concern about the prevalence of binge drinking and alcoholism among underage drinkers, most visibly on college campuses.
According to the CDC, binge drinking accounts for 90% of alcohol consumed by underage drinkers in the U.S.; 51% of 18-to-20-year-olds engage in binge drinking on occasion, resulting in elevated risks for death or injury through accidents or alcohol poisoning.