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November 1st, 2003
Is Dancing on A Toilet Prohibited Now?
Earlier this year, Coors Brewing Company agreed to stop running a television commercial for Coors Light because the Council of Better Business Bureaus ("BBB") said that the commercial violated Coors’ own voluntary advertising standards.
The commercial does not show drinking and driving, excessive drinking, or even any on-screen drinking at all. It just shows men and women having a good time in lots of different situations -- for example, people at parties, a man pushing another man fast in a shopping cart, a man spraying people with water, women dancing on toilets, and some men eating a big plate of chicken wings.
Between the scenes, various questions appear on screen, such as "why do we party," "why do we act like fools," and "why do we order the large wings when a medium would do?" The reason given is "because we can."
Although this may seem like a pretty typical beer commercial, it was pulled off the air because of Coors’ membership in the BBB’s "Advertising Pledge Program." Companies that join this unusual program agree to submit to the BBB unresolved disputes with consumers about whether they are living up to their own corporate advertising guidelines.
Toward more effective self regulation
The Federal Trade Commission has been putting increasing pressure on the alcohol industry to regulate itself, particularly with regard to how kids are affected by industry marketing practices. One reason that government regulators push industry toward self-regulation is that they have very limited resources. When issues involve matters of taste and responsible marketing, the First Amendment may also get in the way of the government stepping in. Companies like self-regulation because they know that if they do a good job of monitoring themselves, it reduces the likelihood that the government will come after them or start passing even more restrictive laws about what they can do.
The FTC wants companies to do more than just set standards, however. There have been voluntary standards in the alcohol industry for many years. The FTC wants companies to adopt systems where independent third parties review compliance with those standards, apply the standards consistently, and then make their decisions public.
The Distilled Spirits Council of the United States ("DISCUS") recently toughened up its own standards, the "Code of Responsible Practices for Beverage Alcohol Advertising and Marketing." As part of a major revision to the Code, DISCUS will now regularly issue reports about its decisions concerning alleged violations of the Code. DISCUS also expanded the Code to cover beer and wine advertising and added new guidelines that restrict advertising content, require a responsible drinking message where practicable, and require all actors and models appearing in alcohol advertising to be at least twenty-five.
No drinking and…
Although Coors didn’t show drinking, the BBB felt that by promoting indulgence, irresponsible behavior, and lack of control, such as ordering heaping portions of chicken wings, the "because we can" spot implicitly encouraged excessive drinking. The BBB said that "the connection between excessive consumption of food and beer is too strong to be overlooked." The BBB also felt that the behavior depicted in the commercial violated Coors’ pledge to advertise responsibly. Pointing to the scenes where a man is energetically pushing another man in a shopping cart and the women dancing on toilets, the BBB said that "there is little question that the activities are risky, especially after use of alcohol."
It used to be that the only serious industry hurdle was television network clearance. Now, with the toughening of voluntary standards and a stronger commitment to enforce them, along with a focus on subjective taste and responsible marketing concerns, getting a commercial in the can has suddenly gotten a whole lot more complicated.
This article first appeared in the November 2003 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
Other Published Articles
The California Consumer Privacy Ac is not Y2K 2.0
The Los Angeles & San Francisco Daily Journal published Tanya Forsheit’s article “The California Consumer Privacy Ac is not Y2K 2.0.” The article discusses the background of the CCPA and an overview of the challenges organizations face with CCPA compliance. View Article
February 6 2020
A Red Line at Last: ABA Formal Opinion 489 (2019)
The American Bar Association’s Professional Liability Litigation Committee published Ronald C. Minkoff's article “A Red Line at Last: ABA Formal Opinion 489 (2019).” The article discusses the December 2019 Formal Opinion by the ABA Standing Committee on Ethics and Professional Responsibility prohibiting anticompetitive practices by law firms seeking to discourage partners from leaving. (Behind paywall) View Article
February 5 2020
Media Law International: Rules on Influencer Advertising and FTC’s Guidance on Disclosure
Media Law International published Hannah Taylor’s article “Rules on Influencer Advertising and FTC’s Guidance on Disclosure.” View Article
December 31 2019