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Plaintiffs claim provocative campaigns are being waged to appeal to
underage drinkers. Firms deny targeting teens.
By
Myron Levin, Times Staff Writer
Casey Goodwin knew all too well the dangers of
drinking and driving.
For years, her mother, Lynne, had run programs to fight teen alcohol use
in the Tulare County schools. At her high school in the Central Valley
town of Exeter, Casey had been involved in student campaigns against
underage drinking.
On March 13, 2003, as 20-year-old Casey was
headed home from college in San Luis Obispo to celebrate her mom's
birthday, a plastered 18-year-old doing 90 miles an hour plowed into her
Honda Civic. She died a short time later.
FOR
THE RECORD:
Alcohol ads —An article in Thursday's Business section about
lawsuits that target the marketing practices of the alcohol industry
said one of the suits was filed in Washington. It was referring to the
nation's capital.
The driver was
sentenced to 10 years in prison for vehicular manslaughter.
Then Lynne Goodwin and her husband, Reed, turned their anger on the
alcohol industry. They signed on as lead plaintiffs in a class-action
suit accusing Anheuser-Busch Cos. and Miller Brewing Co.
of aggressively marketing to kids.
Lynne said she didn't care whose booze Casey's killer had been drinking.
She didn't hold the beer makers directly responsible but said they were
logical proxies for an industry that she believed goaded kids to drink.
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Filed last February in Los Angeles County Superior Court, the Goodwin
case is one of five pending class actions that assail the marketing
practices of the beverage industry. The others have been filed over the
last 14 months in Ohio, Colorado, North Carolina and Washington.
The cases have drawn comparisons to the legal assault on cigarette
makers, which have also been accused of marketing to kids.
Beverage makers deny targeting teens and say the claims are groundless.
The suits accuse them of unleashing a flood of provocative, even
raunchy, ads to exploit the raging hormones of adolescents. They say
teens are disproportionately exposed to such ads through magazines and
TV shows with large youth audiences.
For example, a Bacardi ad cited in some of the suits depicts a young
woman in a halter top pouring a shot onto her belly while a man licks
the rum out of her navel. "Vegetarian by day. Bacardi by night," the
tagline says.
The suits also take aim at the industry's heavy promotion of flavored
malt beverages, called "malternatives" by the industry and "alcopops" by
critics. Plaintiffs say these sweet-tasting beverages with brand names
such as Smirnoff Ice, Skyy Blue and Mike's Hard Lemonade, are "gateway"
drinks designed to lure teens who are put off by the taste of alcohol.
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The suits seek court-ordered limits on beverage promotion, such as
restricting ads on TV shows and publications with large youth audiences.
They also seek damages for parents or kids who paid for alcohol
illegally consumed by minors.
Although Anheuser-Busch and Miller are sole targets of the Goodwin suit,
most of the industry's biggest names are defendants in one or more of
the other cases. Among them are Coors Brewing Co., Heineken
USA Inc., Labatt Brewing Co., Samuel Adams Brewing
Co., Bacardi USA Inc. and Diageo, marketer of Smirnoff
Vodka, Jose Cuervo Tequila, Captain Morgan Rum and Guinness beer.
The companies insist that they do not encourage illegal drinking and
that they are trying to reach adult consumers. They say they adhere to a
voluntary code that restricts their ads to media in which at least 70%
of the audience is 21 or older. Beverage companies also say they have spent tens of millions of dollars
in recent years to promote responsible drinking, train retailers to spot
fake IDs and educate parents on ways to combat drinking.
The suits, they contend, are an attempt to muzzle legitimate commercial
speech. And they say paying damages to people who illegally purchased or
consumed alcohol is the wrong way to fight underage drinking.
"These cases seek to reward underage drinkers, or their parents, for
breaking the law," said Edward M. Crane, a lawyer for Anheuser-Busch.
"That would send an undesirable message to teens — namely that underage
drinking is OK and might even be profitable."
Whatever the role of advertising, underage drinking contributes
significantly to beverage makers' bottom lines. A U.S.
government report in 2002 estimated that 12-to-20-year-olds
accounted for 11.4% of alcohol consumed. A study in the Journal
of the American Medical Assn. put the number higher, estimating
that underage drinking in 1999 was responsible for 19.7%, or
$22.5 billion, of total U.S. alcohol sale of $116.2 billion.
The suits come at a time of growing worry over problems linked to
underage drinking — including teen pregnancy, sexual assault and other
crimes, traffic deaths and low academic performance. Some research
suggests that the earlier kids start drinking, the more likely they are
to be alcoholics as adults.
Although the industry has acknowledged the problem, its outreach
programs are "public relations baloney to keep legislators and
litigators off their backs," said George Hacker, director of the alcohol
policies project at the Center for Science in the Public Interest, a
Washington-based consumer advocacy group. |
He hailed the lawsuits as "the beginnings of a new weapon … to confront
the marketing of the alcoholic beverage industry.
"This approach has parallels to the legal campaign waged against the
cigarette makers. Indeed, the alcohol suits have enlisted some veterans
of the tobacco wars. The lawyer who filed the Goodwin class-action suit,
Steve W. Berman of Seattle, represented several attorneys general in
their anti-tobacco cases.
The suits also have drawn heavily on research by the Center for Alcohol
Marketing and Youth at Georgetown University, headed by Jim O'Hara. In
the Clinton administration, O'Hara was associate commissioner and chief
spokesman for David A. Kessler, the Food and Drug Administration
commissioner who sought to regulate the tobacco industry.
The alcohol side has heavyweight corporate defender Dan Webb of
Winston & Strawn, currently lead trial counsel for Philip Morris in
the Justice Department's fraud and racketeering case against the tobacco
industry. Top tobacco law firms Shook, Hardy & Bacon and Jones
Day also are defending beverage industry clients.
And in an effort to head off state lawsuits, the companies have enlisted
the aid of former state attorneys general, including some who once
tormented the cigarette makers. Although no state suits against the
liquor industry appear imminent, at least four former attorneys general
are now consulting with beer and spirits companies. They are critiquing
the companies' programs to curb underage drinking and touting their
efforts to current attorneys general, who have created a task force to
examine the problem of youth access to alcohol.
Heading the list is former Mississippi Atty. Gen. Mike Moore, who has
been retained by Anheuser-Busch. Moore became an instant hero of the
anti-smoking movement when he filed the first state suit against
cigarette makers in 1994. He then wheedled and harassed fellow attorneys
general until dozens more jumped in, turning an improbable crusade into
a juggernaut. In a settlement reached in 1998, tobacco companies pledged
to pay the states $246 billion and to refrain from directly or
indirectly targeting kids — the same issue now facing the alcohol
industry.
Moore said that he was comfortable in his new role and that
Anheuser-Busch was adamantly opposed to underage drinking.
Another top soldier of the tobacco wars, former Arizona Atty. Gen. Grant
Woods, is advising Diageo, the global beverage giant. Former New York
Atty. Gen. Robert Abrams has been retained by Anheuser-Busch and former
Nevada Atty. Gen. Frankie Sue Del Papa was hired by Brown-Forman
Corp. of Louisville, Ky., marketer of Jack Daniel's Tennessee Whiskey
and Korbel sparkling wine.
"Clearly, it's ironic," said Georgetown University's O'Hara. "I just
hope they remember the lessons that they learned in tobacco about what
it really takes to protect" kids.
As with tobacco, success for plaintiffs isn't likely to come quickly, if
ever, analysts say.
Cigarette makers flicked away decades of lawsuits and weren't seriously
threatened until the 1990s, when the states entered the fray.
And recent decisions by the U.S. Supreme Court affirming protections for
commercial speech may be a boon to the alcohol industry.
Moreover, California Atty. Gen. Bill Lockyer said, "compelling evidence
that the tobacco companies hid evidence of consumer harm" was key to
turning the tide. Similar evidence may not exist in the alcohol cases.
"My best guess is it's not going to evolve into a tobacco-like,
multibillion-dollar outcome," Lockyer said.
Even some fans of the lawsuits are guarded about the plaintiffs'
chances.
"The courts may well say that the advertising is constitutionally
protected unless you can show that there was intent to get kids to
drink," said James F. Mosher of the Pacific Institute for Research and
Evaluation, a think tank in Felton, Calif., concerned with science and
health issues. "Without having evidence of fraud, moving forward on the
alcohol side is going to be very hard."
If proof exists of targeting kids, it will typically emerge in pretrial
discovery, when lawsuit opponents are required to share relevant
reports, memos and other documents.
"It wouldn't be at all surprising if some of these big firms have some
incredibly damaging documents in their files," showing that they were
aware that their ads could be appealing to kids, said Stephen McG.
Bundy, a professor at Boalt Hall school of law at UC Berkeley.
But there's no guarantee the cases will survive dismissal motions and
reach the discovery phase.
One part of the Goodwin case has already been thrown out. The suit had
alleged that the beer companies violated California's Unfair Competition
Law, which until recently allowed people such as the Goodwins to act as
private attorneys general on behalf of the general public in seeking to
halt deceptive practices. But Californians on Nov. 2 passed Proposition
64, which restricts such filings to law enforcement agencies and
citizens who can show actual losses of money or property as a result of
the alleged wrongdoing.
The multimillion-dollar pro-Proposition 64 campaign included $325,000
from the Goodwin defendants and their affiliates. Anheuser-Busch and
Miller put up $100,000 and $25,000, respectively, according to campaign
reports filed with the state. An additional $200,000 came from Philip
Morris, a unit of Altria Group Inc., which holds a big stake in
the parent of Miller.
In December, Los Angeles County Superior Court Judge Peter D. Lichtman
dismissed the unfair-competition claim, ruling that the beer makers'
alleged misconduct had not caused financial loss to the Goodwins or two
other named plaintiffs.
Lichtman is scheduled today to hear arguments on whether to dismiss the
remaining claims.
Win or lose, Lynne Goodwin said she expected the case to encourage
greater scrutiny of marketing practices.
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