SALT LAKE CITY – The Utah Alcoholic Beverage Control Commission has requested public comment as it reviews policies relating to advertising of alcoholic beverages. The Church of Jesus Christ of Latter-day Saints has submitted additional testimony urging continuation of existing sound practices and regulations. These detailed comments expand on an earlier statement given to the Commission on 21 September.
The Church opposes liberalization of Utah’s alcoholic beverage control laws. In its written comments to the Commission, the Church emphasizes the following:
- The impact on society from the abuse of alcohol, in terms of pain, sorrow, misery and lost lives, is incalculable.
- Existing alcohol laws are supported by a majority of Utah citizens.
- No social or economic benefit from liberalization of existing policy can outweigh the negative societal consequences that would follow from erosion of existing state controls or the failure to vigorously enforce alcohol laws.
- Utah’s interest in promoting temperance – to discourage overconsumption, intoxication, drunk driving, and underage access and consumption, and to minimize health and public safety consequences related to alcohol – supports restrictions on advertising for all types of alcoholic beverages.
- In addition to a thorough review of existing studies, new studies should be commissioned to analyze the impact of advertising on the state’s temperance interests, especially advertising’s impact on vulnerable youth.
- The Church believes that purveyors of alcohol should not be accorded the same First Amendment protections to promote use of their products to youth as those who speak out on political, social, religious and other issues of human discourse.
- Current laws already provide for the availability of alcoholic beverages for adults who wish to responsibly consume.
- The Commission is required to protect the public interest, including the rights of those citizens who do not wish to be involved with alcoholic beverages, by continuing to uphold and enforce existing alcohol control policy.
As a major participant in building and supporting Utah communities, the Church of Jesus Christ, along with other churches, civic and charitable organizations, has a moral obligation to speak out on issues affecting public morality and welfare, including those dealing with alcohol.
Full text of the testimony follows:
WRITTEN COMMENTS ON ALCOHOL ADVERTISING AND ALCOHOL POLICY
Presented by The Church of Jesus Christ of Latter-day Saints to the Utah Alcoholic Beverage Control Commission
5 October 2001
The position of The Church of Jesus Christ of Latter-day Saints (hereinafter the “Church”) on alcohol consumption is long standing and well known. The Church counsels its members to abstain from the use of alcoholic beverages. The Church has a significant interest in public policies of the State of Utah regarding safety, health and public welfare, including policies on alcohol control and consumption. Over 70 percent of the citizens of the State of Utah are also members of the Church. As set forth below, because of the devastating moral, social and health costs which may result in this State, the Church opposes the liberalization of Utah alcohol laws. It files these written comments with the Alcoholic Beverage Control Commission (“Commission”) to urge the continuation of sound public policies on alcohol regulation, including constitutional restrictions on alcohol advertising.
The Terrible Impact of Alcohol Abuse on Society
The Church is deeply concerned about the moral, social and health costs directly associated with the consumption of alcohol. The use and abuse of alcohol have dire consequences in our state and nation. Alcohol abuse is directly related to birth defects, mental illness, disease, accidents, traffic fatalities, family violence, abuse and neglect, suicide, homelessness and lost productivity. Alcohol abuse is a significant public health and safety risk in the State of Utah. In 1999, the last year for which statistics are available, 7,524 Utah residents were admitted into treatment programs for alcohol abuse and 10,932 people were arrested for driving under the influence of alcohol. Alcohol use among minors in Utah is also a significant problem. Nearly 20 percent of students in grades 7 through 12 report using alcohol within the previous month and over 85 percent of people treated for alcohol abuse in the State of Utah in the last 10 years have reported that their first use of alcohol was when they were still minors. (Utah Division of Substance Abuse, Web Site – www.hsdsa.state.ut.us). Alcohol use appears to be increasing in Utah. Per capita consumption in Utah of distilled spirits, wine and heavy beer rose from 1.717 gallons in fiscal year 1999 to 1.817 gallons in fiscal year 2000, an increase of 5.8 percent. (65th Annual Report of Department of Alcoholic Beverage Control). The impact on our society from the abuse of alcohol, in terms of pain, sorrow, misery and lost lives, is incalculable.
Utah has for many years controlled the sale and consumption of alcoholic beverages. Utah’s alcohol laws contribute to the positive environment in Utah communities. Utah should be justifiably proud of its record as the State with the lowest per capita consumption of alcohol and the resulting lower social costs due to alcohol.
Alcohol: a Moral Issue on Which the Church Takes a Position
As a major participant in building and supporting Utah communities, the Church is concerned that moral-based laws, including those dealing with alcohol, to protect the public health, safety and welfare, not be eroded in these communities. The Church, along with other churches, civic and charitable organizations, has an obligation to speak out on issues affecting public morality and welfare. The United States Supreme Court has recognized and affirmed the traditional, constitutional right of churches to make their position known on social and moral issues and to advocate their concerns in the democratic process. (Walz v. Tax Commission of City of New York, 397 U.S. 664 (1970)). Consistent therewith, the Church has a constitutional and moral obligation to speak out on certain issues. When the issues involve moral matters that impact the lives of its members, affect the quality of life in the state, or involve topics that directly affect the welfare of the Church, it can and often does take a position on such propositions. It has a right and duty to oppose those forces which undermine the moral fiber of society. Alcohol policy is among those paramount issues on which the Church can and does take a stand and will advocate its position in the democratic process.
A fundamental principle of our democracy is that laws are made by the voice of the majority of the people. We live in a pluralistic society. The Church teaches tolerance and respect for the views of others and recognizes that under existing law, adults in the State of Utah can choose to drink responsibly and are allowed reasonable access to alcohol. The Church believes, however, that existing laws on alcohol regulation are supported by a majority of the citizens of this State. The rights and interests of the majority of citizens cannot be forgotten in considering Utah’s alcohol laws. We hope policymakers in listening to those who are most vocal – industry and special interest groups who have specific agendas – do not forget there are multitudes who don’t speak out because current laws are working and acceptable.
The State’s Existing Philosophy on Alcohol Control
The Church believes that sound policies should be pursued to prevent alcohol use by minors, minimize alcohol abuse and reduce alcohol consumption. The existing policies of the State of Utah to control the distribution, sale and consumption of alcoholic beverages pursuant to the 21st Amendment of the United States Constitution and to direct most of the profits on the sale of liquor and wine into state coffers are sound.
Utah alcohol laws already adequately provide for the availability of alcoholic beverages for those who wish to responsibly consume pursuant to the long-standing statutory policy of regulation to “reasonably satisfy the public demand.” (“reasonably” being the operative word.) § 32A-1-104 Utah Code Ann. (1998). Conversely, the Commission has the statutory mandate to protect the public interest, including specifically the rights of citizens who don’t wish to be involved with alcoholic beverages. § 32A-1-104 Utah Code Ann. (1998). To that end, State policy has long been to restrict the availability of alcoholic beverages and to regulate the sale and consumption of alcohol. The State is required by statute, to not promote or encourage the sale of alcoholic beverages. The long-standing policy of the State has also been to restrict advertising and other forms of promoting consumption of alcohol. This policy has previously served the State well. Acting consistent with these policies, the Commission and Department of Alcoholic Beverage Control (“DABC”) previously prohibited licensees and manufacturers from advertising their products.The Recent Decision on Advertising and the Commission’s Response
In light of rulings regarding commercial speech by the United States Supreme Court in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) and Lorilllard Tobacco Co. v. Reilly, 121 S.Ct. 2404 (2001) and by the Tenth Circuit Court of Appeals in Utah Licensed Beverage Association v. Michael Leavitt, et al., No. 00-4058 (10th Cir. July 24, 2001), this Commission revised its policies on alcoholic beverage advertising in an emergency rule. Modifications to this emergency rule were proposed by MADD and the Alcohol Policy Coalition in a public hearing on September 21, 2001, including proposals to address (without the need for additional studies) under-age consumption of alcohol, on the basis that minors have no protected first amendment right to receive information about a product which is illegal as to them. The Commission intends to promulgate an on-going, non-emergency rule, to be published in the Utah State Bulletin on November 1, 2001 and to become effective 30 days later. The Church understands the necessity of moving forward with such a rule; however, as set forth below, it believes that additional study and analysis should be compiled and conducted with respect to alcohol advertising and that the Commission should revisit this rule once such studies are completed.The State’s Substantial Interest in Alcohol Regulation
The courts have recognized that the State has substantial interests at stake when it comes to alcohol regulation. The Supreme Court specifically recognized that states have a substantial interest in regulating alcohol consumption. 44 Liquormart v. Rhode Island, 517 U.S. 484, 490-91 (1996). Likewise, the Tenth Circuit acknowledged in Utah Licensed Beverage Association v. Michael Leavitt, et al. that Utah has a substantial state interest in promoting “temperance” (expansively defined as discouraging over-consumption, intoxication, drunk driving, underage access and consumption, minimizing health consequences of alcohol and promoting public safety, health and welfare as related to alcohol). However, the decision of the Tenth Circuit in that case to invalidate certain of Utah’s advertising statutes is unfortunate. The Church believes that purveyors of alcohol should not be accorded the same First Amendment protections to promote the increased use of their products as those, protected by the First Amendment, who speak out on political, social, religious and other issues of human discourse. Yet, while the courts have provided substantial First Amendment protection to commercial speech, they have not foreclosed entirely the regulation thereof. The task then is to promulgate restrictions on alcoholic beverage advertising that advance these substantial state interests without violating constitutional rights.
Developing a Record on Alcohol Advertising
The Church urges the Commission to begin a thorough and comprehensive review of permissible alcoholic beverage advertising restrictions which may be enacted in light of the recent Tenth Circuit and United States Supreme Court opinions. We recognize that any such restrictions must be in harmony with or a justifiable interpretation of the principles set forth in these recent cases. In order to pass constitutional scrutiny, any legislation will have to be narrowly tailored to advance the substantial state interest in temperance.
We believe the current record on the effects of advertising is incomplete. Data was obtained by the Commission in connection with1996 hearings in response to the 44 Liquormart decision. That record needs to be updated and additional studies obtained beyond those compiled in the original Commission hearing. The Commission should review thoroughly recent studies and perform its own analysis and commission studies on the effects of alcohol advertising. The Commission should invest the resources to obtain the latest and most thorough research, studies and analysis on the impacts of alcohol advertising. Such studies and analysis will then form the foundation upon which to consider additional advertising guidelines. The Commission and the legislature will have to create a careful and thorough record that they calculated the costs and benefits associated with the burden on speech imposed by any new regulations, and that such regulations will in fact alleviate the harms the State has targeted.A number of studies have been conducted in recent years which consider the impact of alcohol advertising on alcohol consumption, particularly consumption by minors. The Commission should review the following studies and consider how they may apply in Utah:
- Austin, E.W., and Johnson, K.K., Effects of general and alcohol-specific media literacy training on children’s decision making about alcohol. J Health Commun 2(1): 17-42, 1997a.
- Austin, E.W., and Johnson, K.K. Immediate and delayed effects of media literacy training on third grader’s decision making for alcohol. J Health Commun 9(4): 323-349, 1997b.
- Saffer, H. Studying the effects of alcohol advertising on consumption. Alcohol Health Res World 20(4): 266-272, (1996).
- Saffer, H. Alcohol Advertising and Motor Vehicle Fatalities, Rev. Econ. Stat. 79(3): 431-442, 1997.
- Wyllie, A.; Zhang, J.F.; and Casswell, S. Responses to televised alcohol advertisements associated with drinking behavior of 10-17 year olds. Addiction 93(3):361-371, 1998a.
- Wyllie, A.; Zhang, J.F.; and Casswell, S. Positive responses to televised beer advertisements associated with drinking and problems reported by 18 to 29 year olds. Addiction 93(5):749-760, 1998b.
An exhaustive review should also be conducted to determine what other studies and reports already exist to support additional advertising restrictions. The Commission can rely on studies and analysis even from other jurisdictions to justify its restrictions. In a recent case involving a city’s regulation of nude dancing, the Supreme Court made it clear that the city need not “conduct new studies or produce evidence independent of that already generated by other cities . . . so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” City of Erie v. P.A.P’S A.M., 529 U.S. 277, 296 (2000). See also Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).
Additional Studies Should be Conducted by the State
In addition to reviewing existing studies on alcohol advertising, the State should consider conducting its own studies and analysis to focus on the impacts of alcoholic beverage advertising on the consumption of alcohol and to buttress the record.
While there may be other variables that impact alcohol consumption, the Church believes that it is obvious, almost intuitive, that advertising of alcohol has a direct and substantial impact on the consumption thereof. Studies should be commissioned to attempt to measure such correlation. Studies using Utah-specific data on the impacts of alcoholic beverage advertising on consumption should also be conducted. Specific types of advertising practices should be examined to determine the impact of that practice on consumption. For example, the State should study the impact of open displays of alcohol in restaurants on over-consumption, public intoxication and underage drinking. Where such studies demonstrate a clear nexus between the State’s objectives and the restrictions imposed, the Commission and the Legislature should be able to rely on such studies as evidence that they performed the requisite analysis of benefits and burdens.
The State’s Burden to Justify its Restrictions
It is important to note that the Commission’s rationale and findings do not need to be based on concrete, irrefutable scientific evidence. While the Commission cannot rely on “mere speculation or conjecture” to uphold advertising restrictions, it is conversely not required to present empirical data accompanied by an overabundance of background information. Falanga v. State Bar of Florida, 150 F.3d 1333 (11th Cir. 1998). In practical terms, restrictions on commercial speech may be justified by a wide range of information, including but not limited to studies, anecdotes, history, consensus, or even simple common sense. See Lorilllard Tobacco Co. v. Reilly, 121 S. Ct. 2404, 2422 (2001). In Anheuser Busch v. Schmoke, 63 F. 3d 1305, 1311 (4th Cir. 1995), the Fourth Circuit explained the burden:
In response to a facial challenge to a regulation of commercial speech, the burden falls on the government to justify its legislative action, but it does not demand that the government canvass every conceivable situation in which some member of the public may be affected atypically by the statute. And the court’s inquiry is limited to consideration of the ordinance on its face against the background of the government’s objective and the prospect of the ordinance’s general effect. If it appears to the court that the legislative body could reasonably have believed, based on data, studies, history or common sense, that the legislation would directly advance a substantial governmental interest, the government’s burden of justifying it is met.
If there is a logical correlation between the objective of the advertising restriction and the means to achieve that goal, the government has met its burden. The standard then is whether the studies and analysis support a reasonable belief that the advertising restriction is linked to the harm the Commission seeks to target.
Once the research has been completed to justify restrictions on advertising because of the link to an increase in alcohol consumption, the State still needs to ensure that any such advertising restriction be narrowly tailored. However, the Supreme Court has made it clear that the “least restrictive means” is not the standard. Instead, only a “reasonable fit between the legislature’s ends and the means chosen to accomplish those ends” is required. The scope of the advertising restriction must be reasonably, though it need not be perfectly, targeted to address the harm intended to be regulated. Lorillard, 121 S.Ct. at 2425; 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 529 (1996). The Court struck down the tobacco advertising restrictions in Lorillard because they were not narrowly tailored and were more extensive than necessary to advance the State’s substantial interest. However, the Court observed that to the extent that studies have identified particular advertising and promotion practices that appeal to youth, tailoring would involve targeting those practices while permitting others. Lorillard, 121 S.Ct. at 2426.Advertising Restrictions Applicable to All Types of Alcohol
Any new attempts to restrict alcoholic beverage advertising, should not make a distinction between liquor and beer; they should focus on all types of alcohol advertising. The Tenth Circuit recognized that one form of alcohol is not more harmful than another and that there is a substantial state interest in tempering the consumption of all types of alcohol, not just liquor and wine. Therefore, in advancing temperance as the substantial state interest, any advertising restrictions should apply to all types of alcohol.
The State should also attempt to analyze what means and methods can appropriately be used to restrict the availability of all alcoholic beverage advertising in forums or venues where minors are present. The Commission may already have an adequate basis to promulgate rules to protect minors from exposure to alcohol. To the extent that additional studies show particular advertising practices impact youth, such studies can be used to tailor a targeted approach to prohibit such advertising practices. The State should also consider measures to limit the pervasive display of alcoholic beverages. The State may be able, for example, to enact restrictions on billboard advertising of alcoholic beverages. A restriction on such billboards, may have to be supported by studies that show youth are influenced to drink by such advertisements and that the proposed restriction is not more extensive than necessary. Thus, the State may be able to restrict billboards within a certain distance of a church, school or playground or other locations where minors congregate, in order to protect minors.
The Church’s Recommendation
The Church urges the State to commission studies on alcohol advertising and undertake additional analysis of the impacts of advertising on the State’s temperance interests. It may take several months to complete the necessary studies; but such studies ought to be obtained as expeditiously as possible. Following the completion of such studies and analysis, this Commission should revisit its Rule, conduct hearings, and should promulgate additional restrictions on advertising and conduct, consistent with the results of these studies and analysis. Moreover, where existing statutory authority to promulgate additional restrictions is not found, the Commission should develop a legislative solution supported by a comprehensive record, and should introduce legislation in the 2003 legislative session. As such studies are developed, the Church will seek opportunity to make more detailed recommendations to the Commission on possible advertising restrictions.
Moreover, the State should consider alternative forms of regulation that do not involve any restriction on speech, but on conduct, and which may also achieve the State’s goal of promoting temperance. Operational restrictions for licensed establishments to limit the exposure of minors to alcohol should be considered. The State could, for example, prohibit minors in the specific locations in licensed establishments where alcohol is displayed on a back bar. It could also prohibit minors entirely in most private clubs. Other non-speech regulations that promote the state’s goal of temperance should be promulgated. This is consistent with the Supreme Court’s direction that methods other than restrictions on speech should be employed where possible to advance the State’s substantial interests.
Utah should be at the forefront of reasonable laws to prevent over-consumption and alcohol abuse. The trend nationally is towards more rather than less control over harmful substances. People are becoming increasingly more aware of the high health, safety and social costs associated with alcohol. The Church believes that alcohol abuse declines when the availability of alcoholic beverages is controlled. Reasonable restrictions on alcoholic beverage advertising will promote the State’s legitimate goal of temperance.
The Church also urges the Commission’s continued vigilance in enforcing Utah’s existing statutes and policies on alcoholic beverage control. State alcoholic beverage laws should not be allowed to erode nor should enforcement efforts be slackened. Instead, even more resources should be dedicated to enforcing alcohol control laws. Efforts to circumvent long-standing laws on private club memberships and guest hosting should not be tolerated. No social or economic benefit from liberalization can outweigh the negative societal consequences that would follow from the abdication or erosion of State control or the failure to vigorously enforce laws over the distribution, promotion and consumption of alcohol.
The Church opposes liberalization of the State’s alcoholic beverage control laws which have served this State so well. There of course could be some fine-tuning and improvements to alcohol laws and restrictions. For example, the State could consider exerting greater control over the sale and consumption of beer by imposing state-wide uniform enforcement and operational restrictions relating to such sale and consumption. But there should be no wholesale elimination of long-standing statutes supported by a majority of the citizens of this State. The Church urges the Commission and the State Legislature to continue to uphold the long-standing alcohol control policy of this State, and to resist efforts to erode or emasculate state oversight. Finally, the Church urges the State to not abandon its sound public policy to restrict alcohol advertising. The State should, through research, surveys, studies and analysis, adopt new advertising restrictions to protect the public health, welfare and safety consistent with the principles enumerated by the courts. To do otherwise, would not be sound public policy and could have severe consequences to our State and communities.