Special Report

Trial Lawyer Breath Testers

Our favorite ambulance chasers are now in the business of suing booze makers.

By 7.19.04

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There's nothing new about lawyers attempting to profit from tragedy. When an individual dies after behaving irresponsibly, an attorney always can be found to blame someone with deep pockets. But now many lawyers are as interested in regulating behavior as in making money.

So it is with a raft of lawsuits against alcohol producers for having the temerity to advertise their products. After all, some people drink foolishly and illegally. Some have accidents, and die.

The state tobacco suits were the mother of abusive litigation. As important as money damages were provisions banning advertising, ending sports sponsorships, and killing industry research.

Lawsuits have since proliferated against fast food operators. So far, the cases have been faring poorly, but some attorneys have promised to keep suing until they win. Here again, nanny-state activists are looking for greedy public officials to work with them to regulate a legal industry outside of the normal political process.

Now lawyers have filed actions in California, Colorado, North Carolina, Ohio, and Washington, D.C. targeting the alcohol industry. The plaintiffs demand both monetary damages and advertising restrictions. The suits "wholeheartedly" borrow from the tobacco litigation, admits lawyer Steve Berman, handling a Los Angeles case.

Leading the legal assault are David Boies II, a top litigator hired by the Clinton Justice Department to sue Microsoft, and his son, who heads a separate law firm. Their target list includes Bacardi, Brown-Forman, Coors, Diageo, Heineken, Kobrand Corporation, and Mark Anthony Group, as well as the Beer Institute.

Interestingly, the attorneys left off their hit list Anheuser-Busch and Miller, clients of the elder Boies. Steve Berman remedied that lapse in his suit. Eventually even more companies could be hauled into court.

The plaintiffs claim that alcohol brewers and distillers are "deliberately and recklessly" targeting underage consumers by advertising in publications "disproportionately read" by young people. Reliance on cartoon characters, use of such youthful themes as video games, reference to college activities such as Spring Break, placement of products in movies and TV shows watched by minors, introduction of sexual imagery appealing to young males, and creation of websites accessible to teens are supposed to prove that the alcohol producers are attempting to hook the young.

But advertising is not enough. The plaintiffs assume that advertising is spurring underage drinking. "This is extremely sophisticated marketing that's making an awful lot of money," argues David Boies III, a lawyer hoping to make an awful lot of money with his lawsuit.

His Washington, D.C. complaint charges 17 defendants with having allegedly engaged in "wrongful, unjust, and illegal conduct." The pleadings explain: "a company commits an unfair, deceptive, unconscionable, and unlawful trade practice when it deliberately engages in sophisticated and extensive marketing practices with the purpose and effect of substantially increasing the illegal sales of its dangerous products to children."

Along with these class action suits are individual cases, such as the one filed by the family of 19-year-old Ryan Pisco against Coors. Pisco drank, drove while drunk, and recklessly exceeded the speed limit. He crashed and died.

Which, his family claimed, was Coors' fault because of its sponsorship of sporting events which Ryan allegedly attended.

These lawsuits are a gross misuse of the judicial process. First, alcohol is not inherently dangerous. Millions of people, including most youths, drink without undue effect. The problem is drinking irresponsibly and sometimes illegally, not drinking.

But foolish behavior cannot be blamed on advertising. For instance, Ryan Pisco's death is tragic, but he did not decide to break the law and drive dangerously because of industry advertising. He exercised his free choice -- irresponsibly, unfortunately.

Moreover, advertising does little to change the level of drinking. Most alcohol consumed around the world isn't even advertised.

Changes in advertising -- significant upsurges in the U.S., France, and the Netherlands, and complete elimination in several Nordic countries -- have had no measurable impact on total consumption. In fact, young people say that their parents most affect their attitude towards drinking, followed by the views of their peers. When kids explain why they drink, they never cite ads.

Why, then, do companies advertise? To win market share. People are going to drink. But which brand they drink is not foreordained.

As in many cases involving abusive litigation, the facts consistently contradict the legal allegations. The Federal Trade Commission reviewed industry advertising and produced the 2003 Report on Alcohol Marketing and Advertising.

The FTC discovered "no reliable basis to conclude that alcohol advertising significantly affects consumption, let alone abuse." Moreover, the Commission "found no evidence of targeting underage consumers." Firms advertised to get drinkers to change brands, not to get kids to drink.

The Department of Health and Human Services recommended against restrictions on alcohol advertising in a report to Congress. The agency observed no significant relationship between advertising and consumption.

Private studies as well have found no meaningful connection between advertising and limits on advertising and drinking. There is no evidence justifying regulation or litigation. Explains John Calfee of the American Enterprise Institute: "Invariably, empirical research finds no effect of advertising on the total amount of alcohol consumption."

There's certainly nothing which suggests advertising encourages irresponsible drinking, which is the real issue. People who abuse alcohol don't need to be encouraged to do so.

But all of this evidence is really irrelevant. The Constitution protects freedom of speech, and that includes commercial speech by alcohol producers. We punish brewers and distillers for selling their legal products at our peril, since there's no reason to assume that the regulatory paternalists won't soon find another unpopular vice to penalize.

Moreover, controlling publications mostly read by adults because some teens also see them sets an extraordinarily dangerous precedent. There is little in life that does not have some impact on some child in some place.

Surely we do not all want to be treated as kids as a result. The government should not "reduce the adult population," observed the U.S. Supreme Court 20 years ago in the case Bolger v. Young Drug Products Corp., "to reading only what is fit for children."

And if there seems to be a convincing reason to sacrifice free speech rights, it should be done by the Congress, after a full debate, and not by a judge in a tort case. The political process is imperfect, but better includes diverse interest groups and better balances diverse interests than does a lawsuit.

Even some trial attorneys realize that they are operating on shaky legal ground. After Coors threatened to seek sanctions for frivolous litigation against Kenneth McKenna, the lawyer for Ryan Pisco, McKenna dismissed the lawsuit "with prejudice," which means that it cannot be refiled.

Unreasonable lawyers, juries, and judges have been turning America into a society of victims. No one is responsible for anything; everyone is liable for something. Now the trial bar has set its sights on the alcohol industry.

We must reject regulation by lawyers. Most people who drink do so responsibly; those who do not have only themselves to blame. The only way to deal with alcohol abuse is to hold drinkers -- not brewers or distillers or sellers -- accountable.

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About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).