Vigorous defence but a case to answer
By just-drinks.com editorial team | 2 December 2003
Last week, the Washington DC law firm, Boies Schiller & Flexner LLP, filed a suit in the Superior Court of the District of Columbia against a number of named alcohol companies, alleging that they had targeted underage drinkers in their advertising. To many observers, this has not come as a huge shock.
Insiders within the industry, journalists, analysts and academics have been suggesting for some time that the drinks industry could be vulnerable to such action.
The reckless activities of some - often minor - players and in some cases those of respected mainstream companies who claim to be both within the letter and the spirit of the law in this area have become an increasing cause of concern in recent years. One widely prevailing view is that the industry has been trailing close to the wind for some time. To many, the consequences of this would be twofold: the heightened possibility of a class action and a growing support for tighter regulation.
We have now seen both and without doubt this is the shape of things to come.
The drinks industry has claimed for a long time that it could not be subject to the same sort of litigation mounted against the tobacco industry over the past 20 years or so. But the general view on this seems to be changing.
Notwithstanding the qualitative differences between the two products and the well-supported claims for the health benefits of moderate consumption of alcohol, there are enough similarities to put the alcohol industry at similar risk of legal action. In an increasingly litigious world where people can take a hamburger chain to court because it did not make clear that its products could make you fat, the chances of alcohol remaining immune from such action must surely be fairly slim.
Moreover, it is the similarities between the type of allegations being laid against alcohol companies and those faced by tobacco companies that suggest alcohol companies can, to a degree, brace themselves for similar treatment.
That said, it needs to be remembered that this case has only been lodged and nothing has been proved. The defendants and alcohol lobby groups have been quick to state that they will defend themselves vigorously and believe the charges to be without foundation. Meanwhile, it has been suggested by certain analysts that they have a good chance of defeating this action.
In a statement, Diageo said that its advertising and marketing was directed at "adults over the legal purchase age and is proud of its efforts toward discouraging underage drinking and alcohol misuse. Diageo will vigorously defend this lawsuit." While Heineken USA said that it would not comment on the lawsuit itself, it said that it was "quite confident" that its advertising was "both appropriate and responsible."
Another company mentioned in the lawsuit, Bacardi U.S.A., said that the case was "without merit and should be dismissed". Bacardi said it "does not target underage consumers in its advertising practices" and is "strongly opposed to underage drinking." The company also said it was a founder member of The Century Council, the industry-sponsored organisation which runs programmes aimed at reducing underage drinking and drunk driving.
The message in the rebuttals was consistent and in keeping with the general tenor of industry statements regarding alcohol advertising: that companies do not target underage drinkers and that the products are marketed responsibly. A number of them also made reference to a recent report by the Federal Trade Commission which was generally complimentary about the way alcohol companies conducted themselves in this area.
However, even though it is crucial to the companies concerned and the drinks industry as a whole that the case be defeated, this issue is not simply about winning and losing a legal battle.
In many ways, the mere fact that such a case has been brought is already a blow for the industry. It means that the self-regulation and discipline that the industry prides itself on, at best, has been brought into question.
Just as crucially, it means that the subject of drinks advertising is front-page news. Generally speaking, the drinks industry believes it can hold its head up high in terms of the ethics and conduct of its marketing activities. But in reality it would prefer it if the subject were not widely discussed. Even if what the industry says in its defence is by objective measures perfectly fair, the very fact that it has to come out and defend itself puts it under some sort of cloud of suspicion. In this area, the old adage that there is no such thing as bad publicity is quite wrong. In alcohol policy, virtually all publicity is bad publicity.
While the sponsor of this case is a private citizen, namely a plastic surgeon called Ayman R. Hakki, the likelihood is that various lobby groups who are seeking greater control of the alcohol industry will use the case as a cause through which they can articulate their views. To a degree, it is in the nature of such circumstances that the more an industry has to defend itself from relentless publicity, the more culpable it looks.
Of course, it is arguable that even had the industry showed a little more restraint in recent years in the way it marketed such products as RTDs, this action still would have been brought. The plaintiff has stated that the case has been based on research over going back over the last 20 years. But there is often a suggestion in instances such as this that the industry might have been able to prevent this happening if it had acted more responsibly.
This is impossible to prove and now that the action is ongoing perhaps futile. But it would be salutary and arguably expedient for the industry to use this as an opportunity to look at itself closely, examining how and when its products are marketed and whether it in reality lives up to the high ethical standards which it claims it sets.
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