Alcohol ad rules infringe on free speech, attorney general says

Existing Tennessee Alcoholic Beverage Commission rules “would be subject to serious constitutional challenge on First Amendment grounds,” according to an opinion from the office of state Attorney General Paul Summers. The opinion cited two decades of U.S. Supreme Court decisions on state-imposed restrictions on alcohol and gambling advertising in reaching its conclusion.

The state lawyers looked at current ABC rules that spell out specific limits for alcohol advertising.

One says that distilled spirits may not be advertised “in any manner” on radio or television stations in Tennessee. Another prohibits wine advertisements from giving the name, address or telephone number of a Tennessee licensed wholesaler or retailer.

Audio portions of television and radio ads are not allowed to contain references to the availability of alcoholic beverages. However, use of the word “beverages” in broadcast advertising that principally relates to food service is not considered a violation.

Danielle Elks, the ABC executive director, declined to comment because she said she had not thoroughly looked over the opinion yet.

The opinion was requested by state Sen. Joe Haynes, D-Nashville, who is sponsoring a bill that would limit ABC enforcement of its alcohol advertising regulations.

Charles Sonnenberg, who manages Frugal MacDoogal’s beer and liquor warehouse in Nashville, one of the largest retailers in the region, said if the business had more freedom to advertise, it would.

“Would we care to? Yes,” Sonnenberg said. “We should have that option if we choose to use it.”

The opinion said one of the current ABC rules reviewed likely would be found constitutional.

That regulation says television ads by liquor-by-the-drink licensee may show “normal scenes of activity within the restaurant portion of any such licensee” but not “consumption of alcoholic beverages” and may not make drinks the focus of the ads.

The rules have been in place since before 1982, when the attorney general’s office found them likely to be constitutional.

But several Supreme Court decisions rendered over the last two decades were considered in the latest legal review.

“Outright bans against the advertising of alcoholic beverages are likely to be met with skepticism” by courts, the opinion said. “The state would be required to prove that the ban or restriction serves as an actual state interest and that the restriction or ban protects or furthers that interest in a definite way.”