Maine’s unwise and unconstitutional ban on disclosing the alcohol content of beers

February 7

Not all beers are created equal.  Some are much stronger than others.  The proliferation of micro-breweries and craft beers has meant that consumers cannot know what they’re getting in a beer unless they check.    The alcohol-by-volume content of some beers is more than double that found in a Budweiser — and can be three-to-four times that found in an Amstel Light.  Thankfully, it’s increasingly common for bars to list the alcohol content of beers — unless they’re in Maine.

Maine has a decades-old law that prohibits advertising or otherwise promoting the alcohol content of beer.  For a long time this law was unenforced.  Yet as Jacob Sullum reports, the Maine Liquor and Lottery Commission is now enforcing the law and interpreting it to prohibit the disclosure of ABV-content on bar and restaurant menus.  Sullum points to this story explaining that regulators fear disclosing the alcohol content of beers will encourage underage drinking and “overserving.”  As you might expect, Maine’s brew pubs are not amused.  Many consumers want information about the alcohol content in beers, often because they want to make sure they do not drink too much.  Thus Maine’s policy could actually have the perverse effect of undermining public safety.  A consumer who can safely handle two Bud Lights (4.2% ABV) might be in for a rude surprise after downing even a single bottle of Dogfish Head Brewery’s 120 Minute IPA (18-20% ABV).

Set aside whether Maine’s law is a good idea, it is almost certainly unconstitutional as it is currently being enforced.  Factual claims about products receive First Amendment protection, albeit the slightly diminished level of protection afforded commercial speech. In Rubin v. Coors Brewing Company (1995) the Supreme Court unanimously concluded that the federal government could not prohibit the disclosure of alcohol content on beer labels.  Under this decision, it’s hard to see how a government agency could prohibit the simple listing or disclosure of beer ABV-content on bar menus, placards, and the like.  While the court in Rubin noted that the government could have a substantial interest in discouraging “strength wars” among beer makers, this interest could not justify a blanket ban on disclosing alcohol content.  Similarly, while Maine might be able to justify a more narrowly drawn rule preventing the promotion of alcohol strength, that’s not what Maine regulators appear to be doing.

According to the news reports linked above (see also here), some legislators are seeking to repeal or modify the ban.  Should this effort not succeed, do not be surprised if the Maine law is narrowed or struck down in court.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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