The specific rules generally use the alcohol industry’s voluntary advertising standards as a model. For example, they provide that sellers may not use television or radio advertising unless they have “reliable evidence” that no more than 30 percent of the audience for the program on which the advertising is to air is reasonably expected to be under the age of 21.Similarly, a seller may not advertise in print publications or via the Internet unless it has reliable evidence that no more than 30 percent of the publication’s readership, or the audience for the Internet web site is reasonably expected to be under the age of 21. This means general interest web sites may be off-limits. Another rule prohibits a seller from using unsolicited pop-up advertising on the Internet Moreover, a seller in Colorado “shall not engage” in advertising that specifically targets persons located outside Colorado.
-Marijuana Enforcement Division of the Colorado Department of Revenue
Based on two decisions of the Supreme Court in which it characterized gambling as a “vice,”129
some have presumed that a “vice” exception to the commercial speech doctrine exists. However, in 44 Liquormart, Inc. v. Rhode Island,130 the Court clearly stated that this conclusion is incorrect. The explanation given by the Court was that the definition of what constituted a vice was too malleable, depending both on political and social mores. Furthermore, such an exception would provide legislatures with an easy way to avoid First Amendment scrutiny by simply labeling an otherwise lawful activity as a “vice.”
1-6 The Law of Advertising § 6.03
Tobacco products
Federal Cigarette Labeling and Advertising Act (15 U.S.C. §§ 1331-1341)
Comprehensive Smokeless Tobacco Health Education Act of 1986 (15 U.S.C. §§ 4401-4408)
* Truth in Advertising
Federal Alcohol Administration Act (27 U.S.C. §§ 201-219a)
These decisions demonstrate that there is no bright line between federal and state powers over liquor. The Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situations. The competing State and federal interests can be reconciled only after careful scrutiny of those concerns in a concrete case. (citation omitted).
