The Volokh Conspiracy - Great Moments in Government Regulation - The US Government May Punish Daisuke Matsuzaka for Drinking a Beer in a Japanese TV Ad:

The U.S. government is apparently going after Japanese Boston Red Sox pitcher Daisuke Matsuzaka for making a beer commercial in which he had the effrontery to take a sip of Demon Alcohol. The Alcohol Tobacco Tax and Trade Bureau claims that Matsuzaka's ad violated US law:

According to Arthur Resnick, director of public and media affairs for the Alcohol and Tobacco Tax and Trade Bureau in Washington, D.C., Matsuzaka's Asahi ad may merit punitive action. "Our jurisdiction runs to false and misleading ads," said Resnick, who pointed to a 1995 ruling that says the bureau would consider unacceptable any ad "which depicts any individual (famous athlete or otherwise) consuming or about to consume an alcoholic beverage prior to or during an athletic activity or event," or an ad that states that drinking alcohol "will enhance athletic prowess, performance at athletic activities or events, health or conditioning."

The regulation in question is foolish even as applied to the United States. Consumers should be able to decide for themselves whether or not seeing athletes chugging beer is a good recommendation for the product. While an ad that incorrectly claims that drinking beer "will enhance athletic prowess" may indeed be misleading advertising, an ad that merely portrays an athlete drinking a beer is just ordinary "image advertising" that consumers are more than capable of evaluating for themselves. I am not going to get into technical First Amendment analysis here. But it seems to me that censoring advertising not for false factual claims about the product, but merely for promoting a favorable image of a product that the government disapproves of, is a clear violation of constitutional free speech rights - even if the courts have wrongly concluded otherwise.

What makes the ATTB action against Matsuzaka particularly reprehensible, however, is that the ad in question isn't being aired in the United States. It is a Japanese-language ad that will only be shown in Japan, where ads showing athletes drinking beer are perfectly legal. Not only is the ATTB engaging in censorship of American advertising, it also claims the right to censor ads in a foreign country.

For a video of the offending commercial, see here - unless you're afraid that the sight of Dice-K taking a swig of Asahi Beer will turn you into an alcoholic, as the ATTB apparently fears. Personally, I don't really care for alcohol, especially compared to many of my fellow Russians. But this kind of inane overregulation may yet drive me to drink:).

UPDATE: The official acronym of the Alcohol Tobacco Tax and Trade Bureau is apparently ATTB rather than ATTT, as I initially stated. I have made the necessary corrections to the text of the original post.

UPDATE #2: Some commenters point out that it is not clear whether the ATTB actually intends to go after Dice-K or is merely considering doing so. I agree with this, which is why I noted in the original post that they "might" go after him. But I should have made the uncertainty here more clear. Be that as it may, the important issue here is not whether this agency ultimately tries to punish Matsuzaka or not, but the fact that they claim the authority to do so. Even if they choose not exercise that power in this instance, the claim leaves the door open to using it in future cases - possibly against parties less able to defend themselves than a multimillionaire major league pitcher.

	[Ilya Somin, February 18, 2007 at 5:58pm] Trackbacks Great Moments in Government Regulation - The US Government May Punish Daisuke Matsuzaka for Drinking a Beer in a Japanese TV Ad: The U.S. government is apparently going after Japanese Boston Red Sox pitcher Daisuke Matsuzaka for making a beer commercial in which he had the effrontery to take a sip of Demon Alcohol. The Alcohol Tobacco Tax and Trade Bureau claims that Matsuzaka's ad violated US law: According to Arthur Resnick, director of public and media affairs for the Alcohol and Tobacco Tax and Trade Bureau in Washington, D.C., Matsuzaka's Asahi ad may merit punitive action. "Our jurisdiction runs to false and misleading ads," said Resnick, who pointed to a 1995 ruling that says the bureau would consider unacceptable any ad "which depicts any individual (famous athlete or otherwise) consuming or about to consume an alcoholic beverage prior to or during an athletic activity or event," or an ad that states that drinking alcohol "will enhance athletic prowess, performance at athletic activities or events, health or conditioning." The regulation in question is foolish even as applied to the United States. Consumers should be able to decide for themselves whether or not seeing athletes chugging beer is a good recommendation for the product. While an ad that incorrectly claims that drinking beer "will enhance athletic prowess" may indeed be misleading advertising, an ad that merely portrays an athlete drinking a beer is just ordinary "image advertising" that consumers are more than capable of evaluating for themselves. I am not going to get into technical First Amendment analysis here. But it seems to me that censoring advertising not for false factual claims about the product, but merely for promoting a favorable image of a product that the government disapproves of, is a clear violation of constitutional free speech rights - even if the courts have wrongly concluded otherwise. What makes the ATTB action against Matsuzaka particularly reprehensible, however, is that the ad in question isn't being aired in the United States. It is a Japanese-language ad that will only be shown in Japan, where ads showing athletes drinking beer are perfectly legal. Not only is the ATTB engaging in censorship of American advertising, it also claims the right to censor ads in a foreign country. For a video of the offending commercial, see here - unless you're afraid that the sight of Dice-K taking a swig of Asahi Beer will turn you into an alcoholic, as the ATTB apparently fears. Personally, I don't really care for alcohol, especially compared to many of my fellow Russians. But this kind of inane overregulation may yet drive me to drink:). UPDATE: The official acronym of the Alcohol Tobacco Tax and Trade Bureau is apparently ATTB rather than ATTT, as I initially stated. I have made the necessary corrections to the text of the original post. UPDATE #2: Some commenters point out that it is not clear whether the ATTB actually intends to go after Dice-K or is merely considering doing so. I agree with this, which is why I noted in the original post that they "might" go after him. But I should have made the uncertainty here more clear. Be that as it may, the important issue here is not whether this agency ultimately tries to punish Matsuzaka or not, but the fact that they claim the authority to do so. Even if they choose not exercise that power in this instance, the claim leaves the door open to using it in future cases - possibly against parties less able to defend themselves than a multimillionaire major league pitcher.