Usually, state officials seek public comments in direct response to proposals to change certain laws or regulation.
But the Utah Alcoholic Beverage Control Commission has taken the unprecedented step of seeking public comment on an issue for which there is, as yet, no effort to change state law.And it may be an issue for which public comment will have no effect on the eventual outcome.
The commission is seeking public comment regarding the state's prohibition on alcohol advertising. The request comes in the wake of a U.S. Supreme Court ruling that Rhode Island's ban on alcohol advertising was unconstitutional because that state had failed to offer substantial proof to justify its price advertising ban.
Utah's law is even more restrictive than Rhode Island's inasmuch as it bans all alcohol advertising, not just price advertising. After the court ruling, the Utah Licensed Beverage Association filed a lawsuit in U.S. District Court claiming Utah's total ban is also unconstitutional.
Utah officials have publicly maintained there are substantial differences between the Rhode Island and Utah laws and that the Supreme Court ruling may not apply to Utah's ban. But privately, they admit the Supreme Court ruling will likely force substantial changes to Utah's liquor advertising ban.
Civil rights attorney Brian Barnard, who is representing the Utah Licensed Beverage Association, called the commission's request for public comment "odd, unusual and certainly an unnecessary exercise."
"We don't need John Q. Public saying the U.S. Supreme Court was wrong," Barnard said. "That doesn't do anybody any good. We don't need public comment, and we don't need the legislative process when the Supreme Court has already spoken that such bans are unconstitutional."
In the Rhode Island case, the justices ruled that the state had not proven that alcohol price advertising bans had resulted in greater temperance. Utah's ban also has the stated purpose of promoting temperance.
But the Utah law goes further, saying the ban on alcohol advertising recognizes the rights of non-drinkers not to be exposed to that kind of information. Barnard calls that argument "as defective as the temperance argument," noting that the U.S. Constitution protects speech regardless of how offensive it may be to the majority.
"You may be offended by what someone says, but they still have a right to say it," he said.
The commission is seeking comment on the following questions:
- Should the state regulate alcoholic beverage advertising? If not, please explain why.
- If so, please explain what interests are served by regulating alcoholic beverage advertising, and how are those interests advanced by such regulations.
- What types or forms of alcoholic beverage advertising should be regulated and why?
- What types or forms of alcoholic beverage advertising should be allowed and why?
- Which, if any, Utah restrictions on alcoholic beverage advertising would need to be changed as a result of the U.S. Supreme Court decision?
Written comments should be submitted to the Department of Alcoholic Beverage Control, P.O. Box 30408, Salt Lake City, 84130-0408 no later than Thursday, Aug. 15. Comments can also be faxed to 977-6888 or 977-6889. The commission will consider the advertising issue at its Aug. 23 meeting at 1 p.m.