23 October 2009

Ambiguity in the Law

The caption above says: "Pursue your daydreams." It is suggestive of... well, if you don't know, you are probably reading the wrong blog. Some people might blush talking about the suggestion, some might even find the suggestion obscene.

The federal laws for alcohol advertising make it illegal to disseminate any statement regarding alcohol that is “indecent” or “obscene.” What that means is anyone’s guess. The Federal Trade Commission also has its hand in alcohol advertising, prohibiting any advertising which “encourages underage drinking.” Again, what this means is anyone’s guess.

Would the mere sight of alcohol in a store constitute advertising that might induce someone under the age of 21 to drink? When might someone (who is considered an adult in all other matters) be encouraged to drink? Who decides when something is indecent or obscene?

The short answer is that the decision changes depending on the administration, who is in the office on any given day, and what kind of mood the approver or censurer might be in that day. They standards are entirely subjective.

We cannot look to courts to determine the answer; the definitions of obscene and indecent today are not what they were 20 years ago. The standards also change region to region, even from community to community within the same state. It is up to the advertiser to determine what might be deemed indecent, or what might tempt someone under the age of 21 to drink.

The advertiser cannot even seek prior approval for ads. Even if it were possible, the deciding body might (like the TTB with its label approval rights) have the right to retract its approval if the ad is later deemed obscene or indecent, or that it might encourage an underaged person to drink. An alcohol advertiser, most likely working hard to be within the current nebulous guidelines, might spend thousands on a campaign which it must retract based on the idiosyncrasies of the approver.

We do not advocate that Mickey Mouse be used to sell vodka during the Sunday morning cartoons, but, why not provide concrete guidelines?
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