One of our favorite alcohol advertising cases is finally progressing again. The 8th Circuit has set September 26, 2019, as the oral argument date for the parties in Missouri Broadcasters v. Schmitt et al. The case is a challenge by an advertiser, a manufacturer, and a retailer to stop Missouri’s alcohol advertising rules that allegedly impermissibly regulate truthful advertising by banning certain forms of advertisements and compelling others. Namely, regulations on advertising beer wine and spirits:

  • Barring wholesalers, wineries, distilleries or breweries from advertising sales at a single retailer as opposed to promoting two or more;
  • Barring media companies, radio stations, television stations and newspapers from running ads promoting bar specials or liquor store specials where alcohol is sold at a discount; and
  • Barring retailers from promoting or advertising sales of alcohol at a discount to move aging stock, especially if the sale is at a level below the price the retailer paid for the alcohol from a wholesaler.

The District Court found in favor of the plaintiffs and invalidated the alcohol advertising regulations, in large part based on the initial favorable opinion for the plaintiffs from the 8th Circuit after the District Court had dismissed case. The District Court’s decision held that the state had not established that the statute and the regulations restricting certain methods and content in alcohol advertising were riddled with inconsistencies and did not directly advance a substantial state interest.

For those of you keeping track of the pleadings, the Plaintiffs did file a supplemental brief looking to strike non-record facts and prevent them at argument, basically asking the 8th Circuit to disregard arguments and sources the state brought up in its briefing that were never part of the trial court record which are interesting as they involve specific assertions about the history of advertising regulations and tied-house laws. You’ll find these worth reviewing because not only did the state not establish them at trial, one wonders if they could have established them at all, even though they are tropes, lazy assertions raised in many instances by those opposing rational thought and review and reform of liquor regulations because the current system favors state enforced monopolies and unfounded red tape. For instance:

Reply brief reference

 Assertion In trial court record?

Record citation in Reply brief?
pp. 12-13 “The country agreed that ‘the best system’ for limiting undue influence was by ‘flatly prescribing’ financial support to retailers.”   Tr. 249 cited.  No reference to undue influence or prescribing financial support to retailers.  Witness only said, “It’s basically used by every state and how we – it seems like the best system to control alcoholic beverages,” and that it was not as important as public health. Primary cite is to 9th Circuit case
p. 14 State “submitted evidence of historical harms” No No
P. 18 “The well-established historical problem of undue influence that led the federal government and nearly every state to adopt tied-house laws. *** this history justified California’s

tied-house law.”

 No No; cite to 9th Circuit case only
p. 21 “the determinations by the federal government and nearly every state that tied house laws are necessary to redress problems in the liquor industry”  No No

You can read the full supplemental brief and the remainder of these assertions here.

Can’t wait to post the oral argument audio for you.

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