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AJ Report on Health Claims, Part 2

Continued from Part 1 of 2

AJ’s next target is MGD beer. “Probably the most blatantly illegal advertisement came in early 2009, when a new beer called MGD 64 (boasting just 64 calories) sponsored an online fitness program…” With a claim like that it would be nice to know what makes it “illegal,” if not the imagery of “a thin, toned brunette in a party dress, smiling brightly as she showed off the beer-sponsored body that users could obtain if they joined.” With little analysis or evidence, AJ summarily concludes that the marketing is “patently false and misleading.” By contrast, in my opinion, if you are going to strip most of the calories and body away from a beer, down to a puny 64 calories, you darned well have the right to market it as only 64 calories (especially when the same amount of milk, apple juice or regular beer would have 2-3 times as many calories).

The “Industry Watchdog” lays much of the blame for this sorry state of affairs at the feet of the industry’s failure to properly regulate itself:  “Finally, the most important reason for the breakdown in regulatory oversight is the continuing charade of voluntary self-regulation.” AJ says the industry has “created a system of codes, largely designed to convince policymakers they do not need to intervene, and that the industry can monitor itself” and the system is not working. But AJ would be no happier to have TTB calling the shots. AJ claims that “The government officials at TTB have little to no expertise in health. A better choice might be the Food and Drug Administration (FDA).” AJ provides not a scintilla of evidence that FDA would or could do any kind of a better job with a single one of the issues noted above. FDA might be far more likely to allow vitamins in vodka and on the label. FDA does not police the term natural more strictly compared to TTB. FDA would not be likely to restrict the use of organic claims or disallow MGD from marketing itself as low in calories.

In view of the weak examples set out by the report, and with few if any meaningful health claims getting past TTB, it is a wonder to behold what more rigorous enforcement would look like. Should the government ban imagery associated with sound, ripe fruits (because they are “wholesome” and booze is not)? Should Baileys be stripped of all rights to mention dairy cream (because it’s commonly associated with healthfulness)?

Last but not least, AJ sets its sights on the First Amendment. AJ claims:

Another charade in which the industry engages to keep regulators at bay is to argue that the free speech clause under the First Amendment protects companies from any government regulation of advertising. This makes for good political posturing, but from a legal standpoint, it’s simply not true. The First Amendment does not protect deceptive advertising. The government can and should stop such practices.

This would be damnable if it were true. Is anyone arguing the First Amendment protects companies from all advertising regulations? The part that’s simply not true is to suggest that a meaningful number of alcohol beverage companies make this claim. I am not aware of any alcohol beverage company above a handful of employees that has or would make an extravagant claim of this sort. Most of them favor and support a wide variety of sensible controls on labeling and advertising. To put things in perspective, Dr. David J. Hanson has a detailed overview of AJ and Marin (and its funding, methods and history) here. He explains that it’s nothing new for the group to “[crusade] against First Amendment constitutional free speech rights” in pursuit of its prohibitionist agenda.

It’s not like I left out the better examples, or the better arguments. With even the protein-infused vodka (Devotion), where is the actual, documented harm, as opposed to some vague possibility? I would have liked to find more in this report with which I could agree. I do agree with the premise that alcohol beverages still, after all these years, can raise difficult societal and public health issues, and need to be regulated with seriousness and care. But because the AJ report relies so much on exaggeration, distortion and weak examples, for me the report succeeds mostly in showing there is not a substantial problem related to health claims by alcohol beverage companies.

AJ Report on Health Claims

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AJ Report on Health Claims, Part 1

Back in June, Alcohol Justice issued a report entitled “Questionable Health Claims by Alcohol Companies.” I was pretty excited to read this report, because we study such matters closely. Every few weeks I get an exuberant report of a big health claim, on another alcohol beverage product — but it almost always turns out to be a false alarm.

Also, I wanted to give AJ (formerly known as The Marin Institute) a fair chance to persuade me that a lot of companies do in fact go over “the line.” Even though I freely admit that we derive most of our revenue from alcohol beverage companies, I like to think we are fair and open-minded enough to agree with a strong and well-made point.

The report tends to say a large number of alcohol beverage companies are running roughshod over consumers, with phony health claims, and with the rules either insufficient or largely ignored. AJ suggests the rules are “constantly being violated.”

These advertising practices are legally tenuous, morally unsound, and potentially dangerous. … Using health messages to sell products that can cause such widespread harm is not only unethical, it’s illegal, and yet the regulatory system has failed miserably to protect the American public. … This report examines this disturbing trend to promote alcohol as a health and fitness product…

I was eager to see the evidence at long last. I have seen many a company try and fail, to find a way to meekly suggest that their product might have some positive attributes beyond taste. I recall when a few wine labels tried but failed to suggest, after much litigation, that it might not be a bad idea to check with your doctor about the health effects of wine. Mind you, there was no reference to health benefits. I was eager to see the examples of wine labels promoting heart health; I was eager to see the various digestif labels promoting longevity and improved digestive function; I was eager to see the various anti-oxidant labels that had so stubbornly evaded my past inquisitions.

Instead, AJ trotted out Lotus “Vitamin Infused” Vodka. It sounds dramatic, with all the talk of vitamins and vodka.

[T]he first fortified – or “enhanced” – vodka was introduced in 2007. Lotus White is infused with vitamins B3, B6, B9, and B12. According to the company’s CEO, the vitamins are meant to curb or eradicate hangovers. In an interview, he said the vodka “could actually be good for you.” … Despite the dubious nature of [the] health claims, the marketing techniques seem to be working. Lotus vodka’s sales increased 50 percent in 2009…

AJ fails to note that it never mentioned vitamins on the label, and so far as I know, it hasn’t been sold in many years. It never sold more than a few thousand bottles per year, worldwide. The fading Lotus website shows a total of five web retailers; none of them carry this anymore or have it in stock.

If this is the best AJ can do, with thousands of new alcohol beverage products every year, and over 130,000 label approvals per year, it is tough to imagine a more ringing endorsement for the status quo.

AJ next rails against the pernicious use of the term “natural” on various alcohol beverages.

In 2008, three of the five top-selling vodka companies in the U.S. had ad campaigns with fruit and positioned their products as fresh or all natural:  Absolut (2nd), Skyy (4th), and Stoli (5th). At least one other spirit, Finlandia vodka, also took advantage of the all-natural designation. … Skyy’s website, however, confirms that no actual fruit is used in the process. Because [TTB] has not defined the words “infusion” or “all-natural,” the company uses them freely.

I am having trouble comprehending whether AJ would be more happy if the same products were loaded up with artificial flavors instead. As Herman Cain might say, AJ is “incorrect” in saying TTB does not define terms like natural and all-natural. TTB has rigorous standards for terms such as these. TTB tests all flavors in all alcohol beverages — whether made within or without the US — to verify that they are natural. It is far from a rubber stamp regime. TTB maintains a laboratory staffed with more than a few specialized beverage and non-beverage chemists, to verify the assertions of the many specialized and sophisticated flavor companies that seek flavor approvals. In many instances, far from being a marketing gimmick, the law requires the use of natural flavors only (prime examples would be liqueurs and the flavored vodkas mentioned by AJ). To avoid the use of natural flavors in products like the flavored vodkas above would be in direct and flagrant conflict with federal laws in place since about the 1930s. This being the case, does AJ really think it’s a good idea to suppress this information? And on what grounds? AJ also suggests that the term “organic” should not be used on products that meet the rigorous standards to qualify as organic. AJ is long on casting aspersions and short on constructive suggestions in saying “marketers should not use the term ‘organic’ to imply an alcoholic beverage is healthful. Additional oversight by federal regulators is needed here, as well.”

See Part 2 of 2 in about a week

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The Sports Illustrated Index: Advertising

si

We got to thinking that the much-ballyhooed swimsuit issue, published in Sports Illustrated every winter, might shed some light on trends in the economy, alcohol beverage advertising, and print advertising more generally. In the past, the swimsuit issue has been a prime place for beer and spirits advertising.

This year’s issue is 178 pages, chock full of bikinis. Only 7.3 pages are devoted to alcohol beverage ads. This is nearly a 50% drop off from two years ago, when the economy (and print advertising) were flying a lot higher.

A big part of this is due to one brand. Budweiser advertising was at seven pages in 2007 and down to a skimpy two pages in 2009.

Almost all of the 2009 ads seem to be customized for the swimsuit edition. Back in 2007, it was about half and half. There is essentially no wine advertising in any of these three issues, and beer accounts for 2/3 while spirits are at about 1/3.

Herewith, two of the better alcbev-centric ads tailored to this magazine.

glen

The text on this Glenlivet Scotch ad may be hard to read, and is worth repeating. It says:

THE GLENLIVET was ESTABLISHED when SWIMWEAR was a lady’s SAFEGUARD from the elements. Back in 1824, even the SLIGHTEST display of ANKLE could put the FIRE in any gentleman’s HEART. While such MODESTIES have been cast aside, FORTUNATELY, the QUINTESSENCE of good taste is still to be ENJOYED with the SINGLE MALT that STARTED IT ALL.

heineken

They are both from 2007 and the later ones don’t seem as good.

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Beer with Vitamins

Click for COLA

TTB is unlikely to allow “Beer with Vitamins” anytime soon. And yet every couple of months, we hear a report of another “beer with vitamins.” Most often, it’s based on flimsy evidence. But every now and then, something very close or on the mark will turn up.

Stampede Light (above) shows a beer sometimes purported to contain vitamins. The approved labels don’t mention vitamins. But the advertising strongly hints that this beer contains added vitamins. The website (as of March 2009) refers to doctors, vitamins, health, and shows a person doing one-handed pushups. It probably went much further, before 2007. Forbes reports that Larry Schwartz:

launched Stampede in November 2005 by marketing it as “beer with horsepower” and trumpeting its added vitamins in print ads and radio spots in Texas–and on his MySpace page. A short time later he received a letter from the Alcohol & Tobacco Tax & Trade Bureau, part of the U.S. Treasury Department. The TTB says health-related claims made by alcoholic drink manufacturers must be verifiable and balanced with revelations about the health risks of excessive alcohol consumption.

Schwartz … who has racked up $100,000 in legal fees while negotiating with the TTB, hopes below-the-radar marketing tricks will give Stampede a boost–and keep him out of trouble.

For example, it looks as if Mr. Schwartz has retained a certain actress to say what he’d better not say.

We did find another brand — with clear evidence of added vitamins, right on the approved front labels. But before setting off any more false alarms about beer with vitamins, we hasten to add that these approvals are not recent, and their current status is “surrendered.”

TTB is at the early stages of developing regulations related to alcohol beverages containing vitamins, minerals and caffeine.

March 19, 2013 Update:  TTB’s interim policy.

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Champagne Battle Spills into Time Magazine

We never thought we’d see a TTB controversy make it into a big ad in the national media — let alone a full page ad in Time Magazine. The yellow ad is on page 69 of the December 29, 2008 “Person of the Year” double issue and it covers the entire page.

The French Office of Champagne is not at all pleased that some non-French wines qualify to be called Champagne, under US law. The ad says “Masquerading as Champagne … isn’t fair. … A legal loophole allows” some names to be misused.

In 2006, after many years of negotiations between the US and the European Union, and agreement, TTB set forth the current US rule in TTB Industry Circular 2006-1:

the U.S. made a commitment to seek to change the legal status of [terms like Champagne] to restrict their use solely to wines originating in the applicable EU member state, with certain exceptions. Because the IRC specifically defines semi-generic names, this law must be changed in order to restrict the usage of the names to wines originating in the EU. Assuming the law is so changed, the Agreement contains an exception to this rule. We refer to this exception as the “grandfather” provision. Under the “grandfather” provision, any person or his or her successor in interest may continue to use a semi-generic name or Retsina on a label of a wine not originating in the EU, provided the semi-generic name or Retsina is only used on labels for wine bearing the same brand name, or the brand name and the fanciful name, if any, that appear on a COLA that was issued prior to March 10, 2006.

E. & J. Gallo appears to have been very deft in navigating this elaborate path, to preserving the term Champagne on its top-selling brands such as Barefoot (above), Tott’s, Andre, and Ballatore. Box 19 of the Barefoot COLA shows that TTB grandfathered this brand.

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