Cheers to Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable
28 Pages Posted: 16 Feb 2019
Date Written: May 31, 2018
Independent craft breweries contributed approximately $68 billion dollars to the national economy last year. However, the alcohol industry in general, and the craft beer industry specifically, is governed by an arcane regulatory scheme that poses both obstacles and benefits to independent craft brewers. This article examines regulations that arguably infringe on free speech in the form of commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anti-competitive behavior that can stem from vertical and horizontal integration in the alcohol market. Such regulations are necessary to prevent global corporate brewers from dominating the craft beer market at the expense of independent craft beer and consumer choice. But evolving commercial speech doctrine threatens to invalidate such restrictions due to a trend towards increased protections for commercial speech. Without these regulations, and many others like them, nothing would restrain global corporate brands from engaging in illegal pay-to-play conduct to regain lost market share and force independent craft beer from the shelves and tap handles.
Keywords: Craft Beer, Commercial Speech, Advertising, First Amendment
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