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Lawsuits Take Aim at Ads for Alcohol

Plaintiffs claim provocative campaigns are being waged to appeal to underage drinkers. Firms deny targeting teens.

January 27, 2005|Myron Levin | Times Staff Writer

He hailed the lawsuits as "the beginnings of a new weapon ... to confront the marketing of the alcoholic beverage industry."

This approach has parallels to the legal campaign waged against the cigarette makers. Indeed, the alcohol suits have enlisted some veterans of the tobacco wars. The lawyer who filed the Goodwin class-action suit, Steve W. Berman of Seattle, represented several attorneys general in their anti-tobacco cases.

For The Record
Los Angeles Times Friday January 28, 2005 Home Edition Main News Part A Page 2 National Desk 1 inches; 36 words Type of Material: Correction
Alcohol ads -- An article in Thursday's Business section about lawsuits that target the marketing practices of the alcohol industry said one of the suits was filed in Washington. It was referring to the nation's capital.

The suits also have drawn heavily on research by the Center for Alcohol Marketing and Youth at Georgetown University, headed by Jim O'Hara. In the Clinton administration, O'Hara was associate commissioner and chief spokesman for David A. Kessler, the Food and Drug Administration commissioner who sought to regulate the tobacco industry.

The alcohol side has heavyweight corporate defender Dan Webb of Winston & Strawn, currently lead trial counsel for Philip Morris in the Justice Department's fraud and racketeering case against the tobacco industry. Top tobacco law firms Shook, Hardy & Bacon and Jones Day also are defending beverage industry clients.

And in an effort to head off state lawsuits, the companies have enlisted the aid of former state attorneys general, including some who once tormented the cigarette makers. Although no state suits against the liquor industry appear imminent, at least four former attorneys general are now consulting with beer and spirits companies. They are critiquing the companies' programs to curb underage drinking and touting their efforts to current attorneys general, who have created a task force to examine the problem of youth access to alcohol.

Heading the list is former Mississippi Atty. Gen. Mike Moore, who has been retained by Anheuser-Busch. Moore became an instant hero of the anti-smoking movement when he filed the first state suit against cigarette makers in 1994. He then wheedled and harassed fellow attorneys general until dozens more jumped in, turning an improbable crusade into a juggernaut. In a settlement reached in 1998, tobacco companies pledged to pay the states $246 billion and to refrain from directly or indirectly targeting kids -- the same issue now facing the alcohol industry.

Moore said that he was comfortable in his new role and that Anheuser-Busch was adamantly opposed to underage drinking.

Another top soldier of the tobacco wars, former Arizona Atty. Gen. Grant Woods, is advising Diageo, the global beverage giant. Former New York Atty. Gen. Robert Abrams has been retained by Anheuser-Busch and former Nevada Atty. Gen. Frankie Sue Del Papa was hired by Brown-Forman Corp. of Louisville, Ky., marketer of Jack Daniel's Tennessee Whiskey and Korbel sparkling wine.

"Clearly, it's ironic," said Georgetown University's O'Hara. "I just hope they remember the lessons that they learned in tobacco about what it really takes to protect" kids.

As with tobacco, success for plaintiffs isn't likely to come quickly, if ever, analysts say.

Cigarette makers flicked away decades of lawsuits and weren't seriously threatened until the 1990s, when the states entered the fray.

And recent decisions by the U.S. Supreme Court affirming protections for commercial speech may be a boon to the alcohol industry.

Moreover, California Atty. Gen. Bill Lockyer said, "compelling evidence that the tobacco companies hid evidence of consumer harm" was key to turning the tide. Similar evidence may not exist in the alcohol cases.

"My best guess is it's not going to evolve into a tobacco-like, multibillion-dollar outcome," Lockyer said.

Even some fans of the lawsuits are guarded about the plaintiffs' chances.

"The courts may well say that the advertising is constitutionally protected unless you can show that there was intent to get kids to drink," said James F. Mosher of the Pacific Institute for Research and Evaluation, a think tank in Felton, Calif., concerned with science and health issues. "Without having evidence of fraud, moving forward on the alcohol side is going to be very hard."

If proof exists of targeting kids, it will typically emerge in pretrial discovery, when lawsuit opponents are required to share relevant reports, memos and other documents.

"It wouldn't be at all surprising if some of these big firms have some incredibly damaging documents in their files," showing that they were aware that their ads could be appealing to kids, said Stephen McG. Bundy, a professor at Boalt Hall school of law at UC Berkeley.

But there's no guarantee the cases will survive dismissal motions and reach the discovery phase.

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