Update: On Thursday, September 26, 2019, the Missouri Broadcasters participated in oral arguments before the 8th Circuit Federal Appeals Court in St. Louis.
The state of Missouri had appealed the June 2018 ruling from U.S. District Court. The MBA now awaits the Appeals Court decision. In the meantime, the ruling that enjoined the state from enforcing the regulations and statute is still in place!
Jefferson City, Missouri, July 2, 2018 – The Missouri Broadcasters Association (MBA) is pleased with the June 28th decision of Federal Judge Douglas Harpool, of the U.S. District Court for the Western District of Missouri, finding that two Missouri regulations and one statute were unconstitutional under the First Amendment of the United States Constitution, because they prohibited or inhibited truthful advertising.
The decision means that the portions of three Missouri laws that were challenged by the MBA are no longer in effect. Because of the Constitution’s supremacy clause, the federal court’s declaratory judgment that these state laws are unconstitutional essentially nullifies them. Additionally, Judge Harpool’s ruling enjoins Dorothy Taylor, the state supervisor of alcoholic beverage regulation, from enforcing these laws.
In simple terms, the laws that challenged prohibited the following:
• Media advertising of discount and/or below cost prices by a retail seller of alcoholic beverages;
• Financial support to retailers for advertising provided by manufacturers or distributors of alcoholic beverages (that is, vendor support or cooperative advertising)
Under Judge Harpool’s order, all of these activities, previously prohibited, are now allowable. The ruling was based on the U.S. Supreme Court’s commercial speech doctrine, which prohibits bans on truthful advertising, except in unusual circumstances that Judge Harpool found that the defendant, state officials did not prove in this case.
Businesses who operate bars, restaurants, liquor stores, and other retail alcoholic beverage sales venues can now place commercial advertising, featuring actual discounted prices. They are no longer limited to using code words to signal the discount, like “happy hour” and “ladies night”, and can clearly state the price and amount of the discount. The decision should also be helpful when retailers seek advertising support from manufacturers or distributors, like beer distributors. In the past, vendor supported or coop advertising paid by distributors was allowable only when the resulting ads identified two or more unrelated retailers and did not mention the price, but because of the ruling, those restrictions are no longer in effect.
The MBA began over ten years ago repeatedly trying to convince the state to comply with the First Amendment and Supreme Court precedents even before filing a lawsuit in 2012. This ruling now allows Missouri media outlets, like those in its eight bordering states, to accept discounted alcohol advertising and financial support from manufacturers and distributors.
For more information please contact the MBA office at 573-636-6692 or email Mark Gordon, MBA President/CEO