OCTOBER TERM, 1994
Syllabus
RUBIN, SECRETARY OF THE TREASURY
v.
COORS BREWING CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No.93-1631. Argued November 30, 1994-Decided April 19, 1995
Because § 5(e)(2) of the Federal Alcohol Administration Act
(FAAA or Act), 27 U. S. C. § 205(e)(2), prohibits beer labels from
displaying alcohol content, the federal Bureau of Alcohol, Tobacco
and Firearms (BATF) rejected respondent brewer's application for
approval of proposed labels that disclosed such content. Respondent
filed suit for relief on the ground that the relevant provisions of
the Act violated the First Amendment's protection of commercial
speech. The Government argued that the labeling ban was necessary
to suppress the threat of "strength wars" among brewers, who,
without the regulation, would seek to compete in the marketplace
based on the potency of their beer. The District Court invalidated
the labeling ban, and the Court of Appeals affirmed. Although the
latter court found that the Government's interest in suppressing
"strength wars" was "substantial" under the test set out in
Central Hudson Gas &
Elec. Corp. v.
Public
Servo Comm'n of N. Y.,
447 U. S. 557, the court
held that the ban violates the First Amendment because it fails to
advance that interest in a direct and material way.
Held: Section 5(e)(2) violates the First Amendment's
protection of commercial speech. Pp.480-491.
(a) In scrutinizing a regulation of commercial speech that
concerns lawful activity and is not misleading, a court must
consider whether the governmental interest asserted to support the
regulation is "substantial." If that is the case, the court must
also determine whether the regulation directly advances the
asserted interest and is no more extensive than is necessary to
serve that interest.
Central Hudson, supra, at 566. Here,
respondent seeks to disclose only truthful, verifiable, and
nonmisleading factual information concerning alcohol content.
Pp.480-482.
(b) The interest in curbing "strength wars" is sufficiently
"substantial" to satisfy
Central Hudson. The Government has
a significant interest in protecting the health, safety, and
welfare of its citizens by preventing brewers from competing on the
basis of alcohol strength, which could lead to greater alcoholism
and its attendant social costs. Cf.
Posadas de Puerto Rico
Associates v.
Tourism Co. of P. R., 478 U. S. 328, 341. There
is no reason to think that strength wars, if they were
477
to occur, would not produce the type of social harm that the
Government hopes to prevent. However, the additional asserted
interest in "facilitat[ing]" state efforts to regulate alcohol
under the Twenty-first Amendment is not sufficiently substantial to
meet
Central Hudson's requirement. Even if the Government
possessed the authority to facilitate state powers, the Government
has offered nothing to suggest that States are in need of federal
assistance in this regard.
United States v.
Edge
Broadcasting Co., 509 U. S. 418, 431-435,
distinguished. pp. 483-486.
(c) Section 205(e)(2) fails
Central Hudson's requirement
that the measure directly advance the asserted Government interest.
The labeling ban cannot be said to advance the governmental
interest in suppressing strength wars because other provisions of
the FAAA and implementing regulations prevent § 205(e )(2) from
furthering that interest in a direct and material fashion. Although
beer advertising would seem to constitute a more influential weapon
in any strength war than labels, the BATF regulations governing
such advertising prohibit statements of alcohol content only in
States that affirmatively ban such advertisements. Government
regulations also permit the identification of certain beers with
high alcohol content as "malt liquors," and they require disclosure
of content on the labels of wines and spirits. There is little
chance that § 205(e)(2) can directly and materially advance its
aim, while other provisions of the same Act directly undermine and
counteract its effects. Pp. 486-490.
(d) Section 205(e)(2) is more extensive than necessary, since
available alternatives to the labeling ban-including directly
limiting the alcohol content of beers, prohibiting marketing
efforts emphasizing high alcohol strength, and limiting the ban to
malt liquors, the segment of the beer market that allegedly is
threatened with a strength war-would prove less intrusive to the
First Amendment's protections for commercial speech.
Pp.490-491.
2 F.3d
355, affirmed.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, GINSBURG,
and BREYER, JJ., joined. STEVENS, J., filed an opinion concurring
in the judgment,
post, p. 491.
Deputy Solicitor General Kneedler argued the cause for
petitioner. With him on the briefs were Solicitor General Days,
Assistant Attorney General Hunger, Richard H. Seamon, Michael Jay
Singer, and John S. Koppel.
478
Bruce J. Ennis, Jr., argued the cause for
respondent.
With him on the brief were Donald B. Verrilli, Jr., Paul M.
Smith, Nory Miller, M. Caroline Turner, and Terrance D. Micek.*
JUSTICE THOMAS delivered the opinion of the Court. Section
5(e)(2) of the Federal Alcohol Administration Act prohibits beer
labels from displaying alcohol content. We granted certiorari in
this case to review the Tenth Circuit's holding that the labeling
ban violates the First Amendment because it fails to advance a
governmental interest in a direct and material way. Because §
5(e)(2) is inconsistent with the protections granted to commercial
speech by the First Amendment, we affirm.
I
Respondent brews beer. In 1987, respondent applied to the Bureau
of Alcohol, Tobacco and Firearms (BATF), an agency of the
Department of the Treasury, for approval of proposed labels and
advertisements that disclosed the alcohol content of its beer. BATF
rejected the application on the ground that the Federal Alcohol
Administration Act (FAAA or Act), 49 Stat. 977, 27 U. S. C. § 201
et seq., prohibited disclosure of the alcohol content of
beer on labels or in advertising. Respondent then filed suit in the
District
*Briefs of
amici curiae urging reversal were filed for
the Center for Science in the Public Interest by
Bruce A.
Silverglade; and for the Council of State Governments et al. by
Richard Ruda.
Briefs of amici curiae urging affirmance were filed for the
Association of National Advertisers, Inc., et al. by Burt Neuborne,
Gilbert H. Weil, Valerie Schulte, and John F. Kamp; for Public
Citizen by David C. Vladeck; for the United States Telephone
Association et al. by Michael W McConnell, Kenneth S. Geller,
Charles A. Rothfeld, William Barfield, and Gerald E. Murray; and
for the Washington Legal Foundation by Charles Fried, Donald B.
Ayer, Daniel
J. Popeo, and Richard A. Samp.
Briefs of
amici curiae were filed for the Beer Institute
by
P. Cameron De Vore, John J. Walsh, and
Steven G.
Brody; and for the Wine Institute by
John C.
Jeffries, Jr.
479
Court for the District of Colorado seeking a declaratory
judgment that the relevant provisions of the Act violated the First
Amendment; respondent also sought injunctive relief barring
enforcement of these provisions. The Government took the position
that the ban was necessary to suppress the threat of "strength
wars" among brewers, who, without the regulation, would seek to
compete in the marketplace based on the potency of their beer.
The District Court granted the relief sought, but a panel of the
Court of Appeals for the Tenth Circuit reversed and remanded.
Adolph Coors Co. v.
Brady, 944
F.2d 1543 (1991). Applying the framework set out in
Central
Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n
of N.
Y., 447 U. S. 557 (1980), the
Court of Appeals found that the Government's interest in
suppressing alcoholic "strength wars" was "substantial."
Brady,
supra, at 1547-1549. It further held, however, that the record
provided insufficient evidence to determine whether the FAAA's ban
on disclosure "directly advanced" that interest.
Id., at
1549-1551. The court remanded for further proceedings to ascertain
whether a "'reasonable fit'" existed between the ban and the goal
of avoiding strength wars.
Id., at 1554.
After further factfinding, the District Court upheld the ban on
the disclosure of alcohol content in advertising but invalidated
the ban as it applied to labels. Although the Government asked the
Tenth Circuit to review the invalidation of the labeling ban,
respondent did not appeal the court's decision sustaining the
advertising ban. On the case's second appeal, the Court of Appeals
affirmed the District Court.
Adolph Coors Co. v.
Bentsen, 2 F.3d
355 (1993). Following our recent decision in
Edenfield
v.
Fane, 507
U. S. 761 (1993), the Tenth Circuit asked whether the
Government had shown that the" 'challenged regulation advances [the
Government's] interests in a direct and material way.'" 2 F. 3d, at
357 (quoting
Edenfield, supra, at 767-768). After reviewing
the record, the Court of Appeals concluded that the Government
480
had failed to demonstrate that the prohibition in any way
prevented strength wars. The court found that there was no evidence
of any relationship between the publication of factual information
regarding alcohol content and competition on the basis of such
content. 2 F. 3d, at 358-359.
We granted certiorari, 512 U. S. 1203 (1994), to review the
Tenth Circuit's decision that § 205(e)(2) violates the First
Amendment. We conclude that the ban infringes respondent's freedom
of speech, and we therefore affirm.
II A
Soon after the ratification of the Twenty-first Amendment, which
repealed the Eighteenth Amendment and ended the Nation's experiment
with Prohibition, Congress enacted the F AAA. The statute
establishes national rules governing the distribution, production,
and importation of alcohol and established a Federal Alcohol
Administration to implement these rules. Section 5(e)(2) of the Act
prohibits any producer, importer, wholesaler, or bottler of
alcoholic beverages from selling, shipping, or delivering in
interstate or foreign commerce any malt beverages, distilled
spirits, or wines in bottles
"unless such products are bottled, packaged, and labeled in
conformity with such regulations, to be prescribed by the Secretary
of the Treasury, with respect to packaging, marking, branding, and
labeling and size and fill of container ... as will provide the
consumer with adequate information as to the identity and quality
of the products, the alcoholic content thereof (except that
statements of, or statements likely to be considered as statements
of, alcoholic content of malt beverages are prohibited unless
required by State law and except that, in case of wines,
statements of alcoholic content shall be required only for wines
containing more than 14 per centum of alcohol by volume), the net
contents of
481
the package, and the manufacturer or bottler or importer of the
product." 27 U. S. C. § 205(e)(2) (emphasis added).
The Act defines "'malt beverage[sJ''' in such a way as to
include all beers and ales. § 211(a)(7).
Implementing regulations promulgated by BATF (under delegation
of authority from the Secretary of the Treasury) prohibit the
disclosure of alcohol content on beer labels. 27 CFR § 7.26(a)
(1994).1 In addition to prohibiting numerical indications of
alcohol content, the labeling regulations proscribe descriptive
terms that suggest high content, such as "strong," "full strength,"
"extra strength," "high test," "high proof," "pre-war strength,"
and "full oldtime alcoholic strength." § 7.29(f). The prohibitions
do not preclude labels from identifying a beer as "low alcohol,"
"reduced alcohol," "non-alcoholic," or "alcohol-free."
Ibid.; see also §§ 7.26(b)-(d). By statute and by
regulation, the labeling ban must give way if state law requires
disclosure of alcohol content.
B
Both parties agree that the information on beer labels
constitutes commercial speech. Though we once took the position
that the First Amendment does not protect commercial speech, see
Valentine v.
Chrestensen, 316 U. S. 52 (1942), we
repudiated that position in
Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976).
There we noted that the free flow of commercial information is
"indispensable to the proper allocation of resources in a free
enterprise system" because it informs the numerous private
decisions that drive the system.
Id., at 765. Indeed, we
observed that a "particular consumer's interest in the
1 BATF has suspended § 7.26 to comply with the District Court's
order enjoining the enforcement of that provision. 58 Fed. Reg.
21228 (1993). Pending the final disposition of this case, interim
regulations permit the disclosure of alcohol content on beer
labels. 27 CFR § 7.71 (1994).
482
free flow of commercial information ... may be as keen, if not
keener by far, than his interest in the day's most urgent political
debate."
Id., at 763.
Still,
Virginia Board of Pharmacy suggested that certain
types of restrictions might be tolerated in the commercial speech
area because of the nature of such speech. See
id., at
771-772, n. 24. In later decisions we gradually articulated a test
based on "'the "commonsense" distinction between speech proposing a
commercial transaction, which occurs in an area traditionally
subject to government regulation, and other varieties of speech.'"
Central Hudson, 447 U. S., at 562 (quoting
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447,455-456
(1978)).
Central Hudson identified several factors that
courts should consider in determining whether a regulation of
commercial speech survives First Amendment scrutiny:
"For commercial speech to come within [the First Amendment], it
at least must concern lawful activity and not be misleading. N ext,
we ask whether the asserted governmental interest is substantial.
If both inquiries yield positive answers, we must determine whether
the regulation directly advances the governmental interest
asserted, and whether it is not more extensive than is necessary to
serve that interest." 447 U. S., at 566.
We now apply
Central Hudson's test to § 205(e)(2).2
2 The Government argues that
Central Hudson imposes too
strict a standard for reviewing §205(e)(2), and urges us to adopt
instead a far more deferential approach to restrictions on
commercial speech concerning alcohol. Relying on
United
States v.
Edge Broadcasting Co., 509 U. S. 418 (1993), and
Posadas de Puerto Rico Associates v.
Tourism Co. of P.
R., 478 U. S. 328 (1986), the Government suggests that
legislatures have broader latitude to regulate speech that promotes
socially harmful activities, such as alcohol consumption, than they
have to regulate other types of speech. Although
Edge
Broadcasting and
Posadas involved the advertising of
gambling activities, the Government argues that we also have
applied this principle to speech concerning alcohol. See
California v.
LaRue, 409
483
III
Both the lower courts and the parties agree that respondent
seeks to disclose only truthful, verifiable, and nonmisleading
factual information about alcohol content on its beer labels. Thus,
our analysis focuses on the substantiality of the interest behind §
205(e) (2) and on whether the labeling ban bears an acceptable fit
with the Government's goal. A careful consideration of these
factors indicates that § 205(e)(2) violates the First Amendment's
protection of commercial speech.
A
The Government identifies two interests it considers
sufficiently "substantial" to justify § 205(e) (2)'s labeling ban.
First, the Government contends that § 205(e)(2) advances Congress'
goal of curbing "strength wars" by beer brewers who might seek to
compete for customers on the basis of alcohol content. According to
the Government, the FAAA's restriction prevents a particular type
of beer drinker-one
u. S. 109, 138 (1972) (holding that States may ban nude dancing
in bars and nightclubs that serve liquor).
Neither
Edge Broadcasting nor
Posadas compels us
to craft an exception to the
Central Hudson standard, for in
both of those cases we applied the
Central Hudson analysis.
Indeed,
Edge Broadcasting specifically avoided reaching the
argument the Government makes here because the Court found that the
regulation in question passed muster under
Central Hudson.
509 U. S., at 425. To be sure,
Posadas did state that the
Puerto Rico Government could ban promotional advertising of casino
gambling because it could have prohibited gambling altogether. 478
U. S., at 346. But the Court reached this argument only
after it already had found that the state regulation
survived the
Central Hudson test. See 478 U. S., at 340-344.
The Court raised the Government's point in response to an
alternative claim that Puerto Rico's regulation was inconsistent
with
Carey v.
Population Services Int'l, 431 U. S. 678 (1977), and
Bigelow v.
Virginia, 421 U. S. 809 (1975).
Posadas, supra, at 345-346.
Nor does
LaRue support the Government's position.
LaRue did not involve commercial speech about alcohol, but
instead concerned the regulation of nude dancing in places where
alcohol was served. 409 U. S., at 114.
484
who selects a beverage because of its high potency-from choosing
beers solely for their alcohol content. In the Government's view,
restricting disclosure of information regarding a particular
product characteristic will decrease the extent to which consumers
will select the product on the basis of that characteristic.
Respondent counters that Congress actually intended the F AAA to
achieve the far different purpose of preventing brewers from making
inaccurate claims concerning alcohol content. According to
respondent, when Congress passed the FAAA in 1935, brewers did not
have the technology to produce beer with alcohol levels within
predictable tolerances-a skill that modern beer producers now
possess. Further, respondent argues that the true policy guiding
federal alcohol regulation is not aimed at suppressing strength
wars. If such were the goal, the Government would not pursue the
opposite policy with respect to wines and distilled spirits.
Although § 205(e)(2) requires BATF to promulgate regulations
barring the disclosure of alcohol content on beer labels, it also
orders BATF to
require the disclosure of alcohol content on
the labels of wines and spirits. See 27 CFR § 4.36 (1994) (wines);
§ 5.37 (distilled spirits).
Rather than suppressing the free flow of factual information in
the wine and spirits markets, the Government seeks to control
competition on the basis of strength by monitoring distillers'
promotions and marketing. Respondent quite correctly notes that the
general thrust of federal alcohol policy appears to favor greater
disclosure of information, rather than less. This also seems to be
the trend in federal regulation of other consumer products as well.
See,
e. g., Nutrition Labeling and Education Act of
1990, Pub. L. 101-535, 104 Stat. 2353, as amended (requiring labels
of food products sold in the United States to display nutritional
information).
Respondent offers a plausible reading of the purpose behind §
205(e)(2), but the prevention of misleading statements of alcohol
content need not be the exclusive Government in-
485
terest served by § 205(e)(2). In
Posadas de Puerto Rico
Associates v.
Tourism Co. of P. R., 478 U. S. 328, 341
(1986), we found that the Puerto Rico Legislature's interest in
promoting the health, safety, and welfare of its citizens by
reducing their demand for gambling provided a sufficiently
"substantial" governmental interest to justify the regulation of
gambling advertising. So too the Government here has a significant
interest in protecting the health, safety, and welfare of its
citizens by preventing brewers from competing on the basis of
alcohol strength, which could lead to greater alcoholism and its
attendant social costs. Both panels of the Court of Appeals that
heard this case concluded that the goal of suppressing strength
wars constituted a substantial interest, and we cannot say that
their conclusion is erroneous. We have no reason to think that
strength wars, if they were to occur, would not produce the type of
social harm that the Government hopes to prevent.
The Government attempts to bolster its position by arguing that
the labeling ban not only curbs strength wars, but also
"facilitates" state efforts to regulate alcohol under the
Twenty-first Amendment. The Solicitor General directs us to
United States v.
Edge Broadcasting Co., 509 U. S. 418 (1993), in
which we upheld a federal law that prohibited lottery advertising
by radio stations located in States that did not operate lotteries.
That case involved a station located in North Carolina (a
nonlottery State) that broadcast lottery advertisements primarily
into Virginia (a State with a lottery). We upheld the statute
against First Amendment challenge in part because it supported
North Carolina's antigambling policy without unduly interfering
with States that sponsored lotteries.
Id., at 431-435. In
this case, the Government claims that the interest behind § 205(e)
(2) mirrors that of the statute in
Edge Broadcasting because
it prohibits disclosure of alcohol content only in States that do
not affirmatively require brewers to provide that information. In
the Government's view, this saves States that might wish to
486
ban such labels the trouble of enacting their own legislation,
and it discourages beer drinkers from crossing state lines to buy
beer they believe is stronger.
We conclude that the Government's interest in preserving state
authority is not sufficiently substantial to meet the requirements
of
Central Hudson. Even if the Federal Government possessed
the broad authority to facilitate state powers, in this case the
Government has offered nothing that suggests that States are in
need of federal assistance. States clearly possess ample authority
to ban the disclosure of alcohol content-subject, of course, to the
same First Amendment restrictions that apply to the Federal
Government. Unlike the situation in
Edge Broadcasting, the
policies of some States do not prevent neighboring States from
pursuing their own alcohol-related policies within their respective
borders. One State's decision to permit brewers to disclose alcohol
content on beer labels will not preclude neighboring States from
effectively banning such disclosure of that information within
their borders.
B
The remaining
Central Hudson factors require that a valid
restriction on commercial speech directly advance the governmental
interest and be no more extensive than necessary to serve that
interest. We have said that "[t]he last two steps of the
Central
Hudson analysis basically involve a consideration of the 'fit'
between the legislature's ends and the means chosen to accomplish
those ends."
Posadas, supra, at 341. The Tenth Circuit found
that § 205(e)(2) failed to advance the interest in suppressing
strength wars sufficiently to justify the ban. We agree.
Just two Terms ago, in
Edenfield v.
Fane, 507 U. S. 761 (1993), we
had occasion to explain the
Central Hudson factor concerning
whether the regulation of commercial speech "directly advances the
governmental interest asserted."
Central Hudson, 447 U. S.,
at 566. In
Edenfield, we decided
487
that the Government carries the burden of showing that the
challenged regulation advances the Government's interest "in a
direct and material way." 507 U. S., at 767. That burden "is not
satisfied by mere speculation or conjecture; rather, a governmental
body seeking to sustain a restriction on commercial speech must
demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree."
Id., at 770-771. We cautioned that this requirement was
critical; otherwise, "a State could with ease restrict commercial
speech in the service of other objectives that could not themselves
justify a burden on commercial expression."
Id., at 771.
The Government attempts to meet its burden by pointing to
current developments in the consumer market. It claims that beer
producers are already competing and advertising on the basis of
alcohol strength in the "malt liquor" segment of the beer market.3
The Government attempts to show that this competition threatens to
spread to the rest of the market by directing our attention to
respondent's motives in bringing this litigation. Respondent
allegedly suffers from consumer misperceptions that its beers
contain less alcohol than other brands. According to the
Government, once respondent gains relief from § 205(e)(2), it will
use its labels to overcome this handicap.
Under the Government's theory, § 205(e) (2) suppresses the
threat of such competition by preventing consumers from choosing
beers on the basis of alcohol content. It is assuredly a matter of
"common sense," Brief for Petitioner 27, that a restriction on the
advertising of a product characteristic will decrease the extent to
which consumers select a product on the basis of that trait. In
addition to common sense, the Government urges us to turn to
history as a guide. Ac-
3" 'Malt liquor' is the term used to designate those malt
beverages with the highest alcohol content .... Malt liquors
represent approximately three percent of the malt beverage market."
Adolph Coors Co. v.
Bentsen,
2 F.3d
355, 358, n. 4 (CAlO 1993).
488
cording to the Government, at the time Congress enacted the F
AAA, the use of labels displaying alcohol content had helped
produce a strength war. Section 205(e)(2) allegedly relieved
competitive pressures to market beer on the basis of alcohol
content, resulting over the long term in beers with lower alcohol
levels.
We conclude that § 205(e)(2) cannot directly and materially
advance its asserted interest because of the overall irrationality
of the Government's regulatory scheme. While the laws governing
labeling prohibit the disclosure of alcohol content unless required
by state law, federal regulations apply a contrary policy to beer
advertising. 27 U. S. C. § 205(f)(2); 27 CFR § 7.50 (1994). Like §
205(e)(2), these restrictions prohibit statements of alcohol
content in advertising, but, unlike § 205(e)(2), they apply only in
States that affirmatively prohibit such advertisements. As only 18
States at best prohibit disclosure of content in advertisements,
App. to Brief for Respondent la-12a, brewers remain free to
disclose alcohol content in advertisements, but not on labels, in
much of the country. The failure to prohibit the disclosure of
alcohol content in advertising, which would seem to constitute a
more influential weapon in any strength war than labels, makes no
rational sense if the Government's true aim is to suppress strength
wars.
Other provisions of the FAAA and its regulations similarly
undermine § 205(e)(2)'s efforts to prevent strength wars. While §
205(e)(2) bans the disclosure of alcohol content on beer labels, it
allows the exact opposite in the case of wines and spirits. Thus,
distilled spirits may contain statements of alcohol content, 27 CFR
§ 5.37 (1994), and such disclosures are required for wines with
more than 14 percent alcohol, 27 CFR § 4.36 (1994). If combating
strength wars were the goal, we would assume that Congress would
regulate disclosure of alcohol content for the strongest beverages
as well as for the weakest ones. Further, the Government permits
brewers to signal high alcohol content through use
489
of the term "malt liquor." Although the Secretary has proscribed
the use of various colorful terms suggesting high alcohollevels, 27
CFR § 7.29(f) (1994), manufacturers still can distinguish a class
of stronger malt beverages by identifying them as malt liquors. One
would think that if the Government sought to suppress strength wars
by prohibiting numerical disclosures of alcohol content, it also
would preclude brewers from indicating higher alcohol beverages by
using descriptive terms.
While we are mindful that respondent only appealed the
constitutionality of § 205(e)(2), these exemptions and
inconsistencies bring into question the purpose of the labeling
ban. To be sure, the Government's interest in combating strength
wars remains a valid goal. But the irrationality of this unique and
puzzling regulatory framework ensures that the labeling ban will
fail to achieve that end. There is little chance that § 205(e)(2)
can directly and materially advance its aim, while other provisions
of the same Act directly undermine and counteract its effects.
This conclusion explains the findings of the courts below.
Both the District Court and the Court of Appeals found that the
Government had failed to present any credible evidence showing that
the disclosure of alcohol content would promote strength wars. In
the District Court's words, "none of the witnesses, none of the
depositions that I have read, no credible evidence that I have
heard, lead[s] me to believe that giving alcoholic content on
labels will in any way promote ... strength wars." App. to Pet. for
Cert. A-38. See also
Bentsen, 2 F. 3d, at 359. Indeed, the
District Court concluded that "[p]rohibiting the alcoholic content
disclosure of malt beverages on labels has little, if anything, to
do with the type of advertising that promotes strength wars." App.
to Pet. for Cert. A-36.4 As the FAAA's exceptions and reg-
4 Not only was there little evidence that American brewers
intend to increase alcohol content, but the lower courts also found
that "in the United States ... the vast majority of consumers ...
value taste and
490
ulations would have counteracted any effect the labeling ban had
exerted, it is not surprising that the lower courts did not find
any evidence that § 205(e) (2) had suppressed strength wars.
The Government's brief submits anecdotal evidence and educated
guesses to suggest that competition on the basis of alcohol content
is occurring today and that § 205(e) (2)'s ban has constrained
strength wars that otherwise would burst out of control. These
various tidbits, however, cannot overcome the irrationality of the
regulatory scheme and the weight of the record. The Government did
not offer any convincing evidence that the labeling ban has
inhibited strength wars. Indeed, it could not, in light of the
effect of the FAAA's other provisions. The absence of strength wars
over the past six decades may have resulted from any number of
factors.
Nor do we think that respondent's litigating positions can be
used against it as proof that the Government's regulation is
necessary. That respondent wishes to disseminate factual
information concerning alcohol content does not demonstrate that it
intends to compete on the basis of alcohol content. Brewers may
have many different reasons-only one of which might be a desire to
wage a strength war-why they wish to disclose the potency of their
beverages.
Even if § 205(e) (2) did meet the
Edenfield standard, it
would still not survive First Amendment scrutiny because the
Government's regulation of speech is not sufficiently tailored to
its goal. The Government argues that a sufficient "fit" exists here
because the labeling ban applies to only one product characteristic
and because the ban does not prohibit all disclosures of alcohol
content-it applies only to those involving labeling and
advertising. In response, respondent suggests several alternatives,
such as directly limiting the alcohol content of beers, prohibiting
marketing efforts em-
lower calories-both of which are adversely affected by increased
alcohol strength."
Bentsen, 2 F. 3d, at 359; accord, App. to
Pet. for Cert. A-37.
491
phasizing high alcohol strength (which is apparently the policy
in some other western nations), or limiting the labeling ban only
to malt liquors, which is the segment of the market that allegedly
is threatened with a strength war. We agree that the availability
of these options, all of which could advance the Government's
asserted interest in a manner less intrusive to respondent's First
Amendment rights, indicates that § 205(e)(2) is more extensive than
necessary.
IV
In sum, although the Government may have a substantial interest
in suppressing strength wars in the beer market, the FAAA's
countervailing provisions prevent § 205(e)(2) from furthering that
purpose in a direct and material fashion. The FAAA's defects are
further highlighted by the availability of alternatives that would
prove less intrusive to the First Amendment's protections for
commercial speech. Because we find that § 205(e)(2) fails the
Central Hudson test, we affirm the decision of the court
below.
It is so ordered.
JUSTICE STEVENS, concurring in the judgment.
Although I agree with the Court's persuasive demonstration that
this statute does not serve the Government's purported interest in
preventing "strength wars," I write separately because I am
convinced that the constitutional infirmity in the statute is more
patent than the Court's opinion indicates. Instead of relying on
the formulaic approach announced in
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N.
Y.,
447 U. S. 557
(1980), I believe the Court should ask whether the justification
for allowing more regulation of commercial speech than other speech
has any application to this unusual statute.
In my opinion the "commercial speech doctrine" is unsuited to
this case, because the Federal Alcohol Administra-
492
STEVENS, J., concurring in judgment
tion Act (F AAA) neither prevents misleading speech nor protects
consumers from the dangers of incomplete information. A truthful
statement about the alcohol content of malt beverages would receive
full First Amendment protection in any other context; without some
justification tailored to the special character of commercial
speech, the Government should not be able to suppress the same
truthful speech merely because it happens to appear on the label of
a product for sale.
I
The First Amendment generally protects the right not to speak as
well as the right to speak. See
McIntyre v.
Ohio
Elections Comm'n, ante, at 342;
Miami Herald Publishing
Co. v.
Tornillo, 418 U. S. 241 (1974); cf.
Wallace v.
Jaffree, 472 U. S. 38, 51-52
(1985). In the commercial context, however, government is not only
permitted to prohibit misleading speech that would be protected in
other contexts,
Virginia Bd. of Pharmacy v.
Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 771-772
(1976), but it often requires affirmative disclosures that the
speaker might not make voluntarily.l The regulation of statements
about alcohol content in the statute before us today is a curious
blend of prohibitions and requirements. It prohibits the disclosure
of the strength of some malt beverages while requiring the
disclosure of the strength of vintage wines. In my judgment the
former prohibition is just as unacceptable in a commercial context
as in any other because it is not supported by the rationales for
treating commercial speech differently under
1 See
In re R. M. J., 455 U. S. 191, 201 (1982)
("[A] warning or disclaimer might be appropriately required ... in
order to dissipate the possibility of consumer confusion or
deception"), citing
Bates v.
State Bar of Ariz., 433
U. S. 350, 375 (1977); see also 15 U. S. C. § 1333 (requiring
"Surgeon General's Warning" labels on cigarettes); 21 U. S. C. §
343 (1988 ed. and Supp. V) (setting labeling requirements for food
products); 21 U. S. C. § 352 (1988 ed. and Supp. V) (setting
labeling requirements for drug products); 15 U. S. C. § 77e
(requiring registration statement before selling securities).
493
the First Amendment: that is, the importance of avoiding
deception and protecting the consumer from inaccurate or incomplete
information in a realm in which the accuracy of speech is generally
ascertainable by the speaker.
I am willing to assume that an interest in avoiding the harmful
consequences of so-called "strength wars" would justify disclosure
requirements explaining the risks and predictable harms associated
with the consumption of alcoholic beverages. Such a measure could
be justified as a means to ensure that consumers are not led, by
incomplete or inaccurate information, to purchase products they
would not purchase if they knew the truth about them. I see no
basis, however, for upholding a prohibition against the
dissemination of truthful, nonmisleading information about an
alcoholic beverage merely because the message is propounded in a
commercial context.
II
The Court's continued reliance on the misguided approach adopted
in
Central Hudson makes this case appear more difficult than
it is. In
Central Hudson, the Court held that commercial
speech is categorically distinct from other speech protected by the
First Amendment. 447 U. S., at 561-566, and n. 5. Defining
"commercial speech," alternatively, as "expression related solely
to the economic interests of the speaker and its audience,"
id., at 561, and as " 'speech proposing a commercial
transaction,'"
id., at 562, quoting
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447, 455-456
(1978), the Court adopted its much-quoted four-part test for
determining when the government may abridge such expression. In my
opinion the borders of the commercial speech category are not
nearly as clear as the Court has assumed, and its four-part test is
not related to the reasons for allowing more regulation of
commercial speech than other speech. See
Central Hudson, 447
U. S., at 579-582 (STEVENS, J., concurring in judgment).
494
STEVENS, J., concurring in judgment
The case before us aptly demonstrates the artificiality of a
rigid commercial/noncommercial distinction. The speech at issue
here is an unadorned, accurate statement, on the label of a bottle
of beer, of the alcohol content of the beverage contained therein.
This, the majority finds,
ante, at 481482, is "commercial
speech." The majority does not explain why the words "4.73% alcohol
by volume" 2 are commercial. Presumably, if a nonprofit consumer
protection group were to publish the identical statement, "Coors
beer has 4.73% alcohol by volume," on the cover of a magazine, the
Court would not label the speech "commercial." It thus appears,
from the facts of this case, that whether or not speech is
"commercial" has no necessary relationship to its content. If the
Coors label is commercial speech, then, I suppose it must be
because (as in
Central Hudson) the motivation of the speaker
is to sell a product, or because the speech tends to induce
consumers to buy a product.3 Yet, economic motivation or impact
alone cannot make speech less deserving of constitutional
protection, or else all authors and artists who sell their works
would be correspondingly disadvantaged. Neither can the value of
speech be diminished solely because of its placement on the label
of a product. Surely a piece of newsworthy information on the cover
of a magazine, or a book review on the back of a book's dust
jacket, is entitled to full constitutional protection.
As a matter of common sense, any description of commercial
speech that is intended to identify the category of speech entitled
to less First Amendment protection should relate to the reasons for
permitting broader regulation: namely, commercial speech's
potential to mislead. See
Virginia Bd. of
2 The 4.73 percent figure comes from an "[i]ndependent
[l]aboratory [a]nalysis" of Coors beer cited in a Coors
advertisement. App. 65.
3 The inducement rationale might also apply to a consumer
protection publication, if it is sold on a newsrack, as some
consumers will buy the publication because they wish to learn the
varying alcohol contents of competing products.
495
Pharmacy, 425 U. S., at 771-772;
Bates, 433 U. S.,
at 383-384;
Bolger v.
Youngs Drug Products Corp.,
463 U. S. 60,81-83
(1983) (STEVENS, J., concurring in judgment); see also
Cincinnati v.
Discovery Network, Inc., 507 U. S. 410, 426 (1993)
(city's regulation of commercial speech bore no relationship to
reasons why commercial speech is entitled to less protection).
Although some false and misleading statements are entitled to First
Amendment protection in the political realm, see,
e. g.,
Gertz v.
Robert Welch, Inc., 418 U. S. 323 (1974);
New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), the
special character of commercial expression justifies restrictions
on misleading speech that would not be tolerated elsewhere. As
Justice Stewart explained:
"In contrast to the press, which must often attempt to assemble
the true facts from sketchy and sometimes conflicting sources under
the pressure of publication deadlines, the commercial advertiser
generally knows the product or service he seeks to sell and is in a
position to verify the accuracy of his factual representations
before he disseminates them. The advertiser's access to the truth
about his product and its price substantially eliminates any danger
that government regulation of false or misleading price or product
advertising will chill accurate and nondeceptive commercial
expression. There is, therefore, little need to sanction 'some
falsehood in order to protect speech that matters.'''
Virginia Bd. of Pharmacy, 425 U. S., at 777-778 (concurring
opinion), quoting Gertz v. Robert Welch, Inc., 418 U.
S., at 341.4
4Justice Stewart's reasoning has been the subject of scholarly
criticism, on the ground that some speech surrounding a commercial
transaction is not readily verifiable, while some political speech
is easily verifiable by the speaker. See Farber, Commercial Speech
and First Amendment Theory, 74 Nw. U. L. Rev. 372, 385-386 (1979).
Although I agree that Justice Stewart's distinction will not extend
to every instance of expression, I think his theory makes good
sense as a general rule. Most of the time, if
496
STEVENS, J., concurring in judgment
See also
Bates, 433 U. S., at 383.
Not only does regulation of inaccurate commercial speech exclude
little truthful speech from the market, but false or misleading
speech in the commercial realm also lacks the value that sometimes
inheres in false or misleading political speech. Transaction-driven
speech usually does not touch on a subject of public debate, and
thus misleading statements in that context are unlikely to engender
the beneficial public discourse that flows from political
controversy. Moreover, the consequences of false commercial speech
can be particularly severe: Investors may lose their savings, and
consumers may purchase products that are more dangerous than they
believe or that do not work as advertised. Finally, because
commercial speech often occurs in the place of sale, consumers may
respond to the falsehood before there is time for more speech and
considered reflection to minimize the risks of being misled. See
Ohralik, 436 U. S., at 447,457-458 (distinguishing in-person
attorney solicitation of clients from written solicitation). The
evils of false commercial speech, which may have an immediate
harmful impact on commercial transactions, together with the
ability of purveyors of commercial speech to control falsehoods,
explain why we tolerate more governmental regulation of this speech
than of most other speech.
In this case, the Government has not identified a sufficient
interest in suppressing the truthful, unadorned, informative speech
at issue here. If Congress had sought to regulate all statements of
alcohol content (say, to require that they be of a size visible to
consumers or that they provide specific
a seller is representing a fact or making a prediction about his
product, the seller will know whether his statements are false or
misleading and he will be able to correct them. On the other hand,
the purveyor of political speech is more often (though concededly
not always) an observer who is in a poor position to verify its
truth. The paradigm example of this latter phenomenon is, of
course, the journalist who must rely on confidential sources for
his information.
497
information for comparative purposes) in order to prevent
brewers from misleading consumers as to the true alcohol content of
their beverages, then this would be a different case. But absent
that concern, I think respondent has a constitutional right to give
the public accurate information about the alcoholic content of the
malt beverages that it produces. I see no reason why the fact that
such information is disseminated on the labels of respondent's
products should diminish that constitutional protection. On the
contrary, the statute at issue here should be subjected to the same
stringent review as any other content-based abridgment of protected
speech.
III
Whatever standard is applied, I find no merit whatsoever in the
Government's assertion that an interest in restraining competition
among brewers to satisfy consumer demand for stronger beverages
justifies a statutory abridgment of truthful speech. Any "interest"
in restricting the flow of accurate information because of the
perceived danger of that knowledge is anathema to the First
Amendment; more speech and a better informed citizenry are among
the central goals of the Free Speech Clause. Accordingly, the
Constitution is most skeptical of supposed state interests that
seek to keep people in the dark for what the government believes to
be their own good. See
Virginia Bd. of Pharmacy, 425 U. S.,
at 769-770;
Bates, 433 U. S., at 374-375. One of the
vagaries of the "commercial speech" doctrine in its current form is
that the Court sometimes takes such paternalistic motives
seriously. See
United States v.
Edge Broadcasting
Co., 509 U. S.
418, 439-440 (1993) (STEVENS, J., dissenting);
Posadas de
Puerto Rico Associates v.
Tourism Co. of P. R., 478 U. S. 328, 358 (1986)
(Brennan, J., dissenting).
In my opinion, the Government's asserted interest, that
consumers should be misled or uninformed for their own protection,
does not suffice to justify restrictions on protected speech in
any context, whether under "exacting scrutiny" or
498
STEVENS, J., concurring in judgment
some other standard. If Congress is concerned about the
potential for increases in the alcohol content of malt beverages,
it may, of course, take other steps to combat the problem without
running afoul of the First Amendment-for example, Congress may
limit directly the alcoholic content of malt beverages. But
Congress may not seek to accomplish the same purpose through a
policy of consumer ignorance, at the expense of the free-speech
rights of the sellers and purchasers. See
Virginia Bd. of
Pharmacy, 425 U. S., at 756-757. If varying alcohol strengths
are lawful, I see no reason why brewers may not advise customers
that their beverages are stronger-or weaker-than competing
products.
In my opinion, this statute is unconstitutional because,
regardless of the standard of review, the First Amendment mandates
rejection of the Government's proffered justification for this
restriction. Although some regulations of statements about alcohol
content that
increase consumer awareness would be entirely
proper, this statutory provision is nothing more than an attempt to
blindfold the public.
Accordingly, I concur in the Court's judgment.
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