Comments on Proposed Amendments to Advertising Rules in WAC 314-52

Introduction:

As a matter of policy, FWWS maintains that public safety regulation of dangerous consumption of alcohol can and should be kept separate from economic regulation of alcohol manufacturers, importers, distributors and retailers. In fact, as FWWS has repeatedly testified before the Washington State legislature, the LCB’s regulation of private economic activity detracts from the LCB’s efforts to protect the public from the dangers of abusive consumption of alcohol. Regulation of private economic activity wastes scarce LCB resources that would be better used to protect public safety. Regulation of private economic activity also limits the economic growth of the Washington wine industry (which is an important state industry) and should therefore be pursued only when there is a clear public safety reason to do so. FWWS recognizes that the most difficult area to implement the distinction between beneficial public safety regulation and unnecessary economic regulation is advertising. FWWS supports reasonable restrictions on advertising that will have clear public safety benefits. In this regard, we appreciate the LCB’s effort to reduce the verbiage and eliminate many of the arcane restrictions in the existing advertising rules. However, the current proposal goes too far, is overbroad, will have unintended consequences, will unnecessarily hamper promotion and sale of Washington wine (an important state agricultural product), is unconstitutional, and is not necessary. As discussed below, FWWS will not support the proposed regulations without substantial revision to better balance protection of public safety with promotion of a legal and vital Washington state product. Our specific comments follow:

WAC 314-52-005 Purpose and application of rules.

WAC 314-52-005(1). The proposed revisions to the purpose of the regulations reflect a conceptual error that is repeated throughout the proposed regulations. The proper goal of the advertising regulations, and in fact the proper goal of all LCB regulation, is “to prevent the misuse of alcohol” as stated in the first part of the proposed new language. FWWS supports this goal. However, reducing youth exposure to alcohol advertising and marketing is not a goal, rather it is a means to an end (that end being protecting public safety by preventing the misuse of alcohol). If everyone always drank in safe, moderate amounts, there would be no public safety need to prohibit young people from drinking alcohol. For instance, minors are permitted in Washington State to drink alcohol at home with their parents and at church because there is little public safety concern in these circumstances. It is because alcohol can and is abused by some members of society that the state has banned the sale of alcohol to minors as a means to achieve the end (goal or purpose) of protecting public safety from abusive consumption of alcohol. Therefore, the second part of the proposed new language is not a legitimate purpose or goal and should be deleted. Other specific examples of this conceptual error are found elsewhere in the regulation as discussed below. The effectiveness of the regulations would be improved, and the unnecessary (and probably unintended) consequences of the regulations would be reduced, if this distinction between means and end was kept in mind while drafting the next version of the proposed regulations.

WAC 314-52-015 Mandatory statements.

WAC 314-52-015(1)(f). As written, the regulations prohibit reference to “any athlete” and “any athletic achievement.” Is the state going to ban advertisements of Greg Norman’s wine? Mario Andretti’s wine? Almost anyone can be considered an athlete, including many winemakers in Washington State whose names are proudly placed on advertisements for Washington State wine. Chateau St. Michelle used to claim in advertisements that their winemaker liked to climb mountains. Would that advertisement be illegal? This proposed regulation should be substantially limited or deleted.

WAC 314-52-015(1)(g). As drafted, the proposed expansion of the prohibition of advertisements depicting children to prohibition of advertisements depicting persons “under twenty-one years of age” is overbroad and will unduly (and unconstitutionally) restrict the promotion of Washington State wine. One cannot think of an effective advertisement that would be appealing to a thirty year old that might not also be appealing to a twenty year old.

WAC 314-52-015(1)(h) and (i). The proposed prohibitions on advertisements that imply “that consumption of alcoholic beverages is fashionable or the accepted course of behavior” or associate alcohol “with social achievement” are perhaps the most objectionable provisions in the proposed regulations. The fact is that Washington wine is fashionable. The fact is that drinking Washington wine is an accepted course of behavior. The fact is that Washington wine is associated with social achievement. Medical doctors tell us that wine has public health benefits. The governor of Washington State and the members of the Liquor Board all drink Washington wine in public. Surely these social achievers are fashionable and pursuing an accepted course of behavior? These provisions should be deleted.

WAC 314-52-015(2). There appears to be an error in this proposed provision. The provision should apply to “advertisements” not “labels.” To FWWS knowledge, the LCB is not proposing to amend the labeling regulations at this time. If the LCB does intend to amend the labeling regulations, please let FWWS know as we would have many additional comments.

WAC 314-52-030 Liquor advertising prohibited in school publications.

An exception should be provided for elementary and secondary school fund raising events. These events are targeted to adult donors. Small Washington wineries are regularly asked to contribute wine to such events and such events are an important source of funding for public and private schools.

WAC 314-52-040 Contests, competitive events, premiums and coupons.

WAC 314-52-040(1)(a). For the reasons discussed above, the second reference to “persons under twenty-one years of age” should be changed to “children.” It will be impossible in practice to distinguish a prize targeted at a twenty year old from one targeted to a twenty-one year old.

WAC 314-52-070 Outdoor Advertising.

WAC 314-52-070(2). This new provision may be well intentioned but is overly broad. Many existing signs at small family wineries are over six hundred square inches. Six hundred square inches equates to a sign that is only 24 by 25 inches in size. Many existing highway signs must be larger than this to be legible. At a minimum, exceptions should be provided for the primary winery signs on the winery building or tasting room, directional signs, “winery open” or “winery closed” signs, “adopt a highway” signs and similar signs.

From conversations with members of the prevention community, we understand that the concern is not with wineries with multiple signs, but with retailers who plaster their buildings with beer advertisements. The proposed regulation could be easily fixed by changing the word “sign” to “advertisement” in the definition of “outdoor advertising” and throughout the provision. It’s advertisements, not signs, that are the problem. The language “trade name and room name signs” should be deleted from subparagraph (1). Washington wine is not evil. Wineries need to be able to show people where they are located and promote their products.

WAC 314-52-070(5). This new provision also appears well intentioned but overly broad. The current requirement that the school or church must object should be retained. If it is not retained, many existing wineries will be in violation because they located their facilities near schools or churches without objection. (Believe it or not, not every church or school thinks that alcohol is evil or that wineries are a threat to children.) Similarly, the objection requirement should also apply for playgrounds or athletic fields. Will wineries currently located within 500 feet of playgrounds and athletic fields be forced to close? At a minimum, there must be an exception for existing wineries and other industry members and for situations where a new school, church, playground or athletic field chooses to locate near an existing winery.

Another way to fix this provision would be to change the definition of outdoor advertising in subparagraph (1) from “signs” to “advertisements” as suggested above.

WAC 314-52-113(2)(b) and (d). For the reasons discussed above, the references to “persons under twenty-one years of age” should be deleted. It will be impossible in practice to distinguish an “inflatable” or “costumed individual” appealing to a twenty year old from one appealing to a twenty-one year old.

WAC 314-52-120. Sponsorship of public and civic events.

WAC 314-52-120(3). The connection between “giveaways” and sponsorship of public and civic events held in public areas is not clear. All public and civic events are held in public areas. Many wine festivals occur on public property. Some small wineries like to give away items of nominal value such as T-shirts and corkscrews at such events. If a giveaway is otherwise legal and appropriate, why can’t it be given away in a public area? Subparagraph (3) is ill conceived and should be deleted. At a minimum, an exception should be provided for events holding a special occasion license.

Conclusion

In conclusion, FWWS supports reasonable restrictions on alcohol advertising to meet the legitimate public safety goal of reducing dangerous drinking. However, as described above, the current proposal goes far beyond limiting alcohol abuse and unduly interferes with commercial speech that is important to the marketing of a valuable Washington State agricultural product. As a wine producing state, Washington’s advertising rules should be a model of balance between promoting public safety and promoting economic growth. The proposed regulations are not balanced and should be substantially revised as suggested above.

WSLCB References

Notice for Comment
Drafted Proposed Language
Summary