The Federal Alcohol Administration Act makes it unlawful to engage in interstate or foreign commerce in distilled spirits, wine, or malt beverages, unless such products conform to regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, which is in the Department of the Justice.5 The act requires that these regulations, among other things, prohibit statements on labels and in advertisements “that are disparaging of a competitor’s products or are false, misleading, obscene, or indecent.” A 1988 amendment to the act requires that alcoholic beverages sold or distributed in the United States, or to members of the Armed Forces outside the United States, contain a specified health warning label.

In 1995, the Supreme Court held unconstitutional a provision of the act that prohibited beer labels from displaying alcohol content unless state law requires such disclosure. The Court found the provision to violate the First Amendment, concluding that, although the government had a legitimate interest in curbing “strength wars” by beer brewers who might seek to compete for customers on the basis of alcohol content, the ban “cannot directly and materially advance” this “interest because of the overall irrationality of the Government’s regulatory scheme.”This irrationality was evidenced by the fact that the ban did not apply to beer advertisements, and that the statute required the disclosure of alcohol content on the labels of wines and spirits.

Federal law does not prohibit the advertising of alcoholic beverages on radio or television, but, since 1936 for radio and 1948 for television, the industry voluntarily refrained from advertising hard liquor on radio or television.On November 7, 1996, however, the Distilled Spirits Council of the United States said that it would lift the ban, but that it had “drawn up 26 guidelines for the industry to follow — guidelines that will avoid a younger audience but also allow this industry to compete more effectively . . . .”The four major television networks announced at the time that they would not air liquor advertisements.

Next, in December, 2001, NBC announced that it would accept liquor ads, butimposed 19 rules to govern them, including limiting them to after 9 p.m E.S.T., requiring that actors in them be at least 30 years old, and requiring the liquor companies to run social-responsibility messages on subjects like designated drivers and drinking moderately. Then, in March 2002, NBC announced that it would no longer accept liquor ads. In November 2007, however, WNBC-TV in New York started to run liquor ads.

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