Liquid Honesty: the First Amendment Right to Market the Health Benefits of Moderate Alcohol Consumption
LIQUID HONESTY: THE FIRST AMENDMENT RIGHT TO MARKET THE HEALTH BENEFITS OF MODERATE ALCOHOL CONSUMPTION ERIK BIERBAUER* For several years, wine makers have sought to advertise and othenvise promore scientific research showing that moderate drinking can have beneficial health ef- fects. The federal govermnen4 however, has largely blocked the wine makers' ef- forts, contending that advertisementsor labels referringto alcohol'spotential health benefits would almost invariablymislead consuners into discounting alcohol's nu- merous dangers. In this Note, Erik Bierbauerargues that wine makers and other alcoholproducers have a FirstAmendment right to market the health benefits of moderate drinking, as long as they do so accurately and include certain limited disclaimers in theirpromotional materials. INTRODUCTION In February 1999, the Bureau of Alcohol, Tobacco and Firearms (ATF)' allowed vine makers to place two carefully worded state- ments referring to "the health effects of wine consumption" on bottle labels.2 The statements, which suggest but do not explicitly say that drinking wine confers health benefits, were approved by ATF after * I thank the staff of the New York University Law Review for their excellent editing. Thanks also to Professors Burt Neuborne and Jerome Skolnick for their helpful comments at early stages of this Note's development. Thanks as well to Sam Kazman of the Competi- tive Enterprise Institute for sending me filings from CEI's suit against the federal govern- ment. Many thanks to Karin Wolfe for enduring, and even encouraging, this and other law-related obsessions. Finally, thanks to my father, Michael Bierbauer, for suggesting this Note's topic and for teaching me, usually with patience and always with wvit, the value of moderation.
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