Appeals Court unanimously affirms alcohol advertising decision in favor of the MBA

Jefferson City, Missouri, January 8, 2020 – The U.S. Court of Appeals for the Eighth Circuit today unanimously affirmed the MBA’s 2018 trial court victory in its legal challenge to three Missouri laws that restricted alcohol advertising.  The decision by the three-judge panel was unanimous, holding that all three of the state laws in issue were unconstitutional, as MBA has contended for many years.

The trial court decision in June 2018, affirmed today, invalidated two regulations that prohibited media advertising of alcohol at discount prices and prices below the retailer’s cost, and a statute that prohibited alcohol producers and distributors from supporting retail media advertising, except on certain highly restricted terms.  Since the trial court’s ruling, these kinds of advertising have been fully allowed in Missouri, and the appeals court ruling today means that the allowance of this advertising will stay in place.

MBA prosecuted this case together with Zimmer Broadcasting of Mid-MO in Columbia, Uncle D’s Sports Bar & Grill in St. Joseph, and Meyer Farms in Springfield.  Their position on appeal was supported by two friend-of-the court briefs, filed on behalf of the Washington Legal Foundation, the Show-Me Institute, American Civil Liberties Union of Missouri, the Freedom Center of Missouri, and the Cato Institute.

In the ruling, by Circuit Judge Jane Kelly, the court firmly rejected all of the State of Missouri’s arguments offered in justification of its advertising bans.  The court found the state’s arguments variously unpersuasive, unsupported by evidence, internally inconsistent, and contrary to the First Amendment, which permits restrictions on truthful advertising only in narrow circumstances.  The court also noted that MBA’s evidence contradicted the state’s claim that alcohol advertising contributed to overconsumption.  At trial, MBA’s expert witness showed that alcohol consumption decreased by 15% over the last 30 years even when alcohol advertising increased by about 400%.

This is the second appellate decision in this case.  In a 2017 decision, the Eighth Circuit also unanimously ruled in MBA’s favor, and reversed a trial court decision dismissing the case.  After that ruling, the case went on to trial in 2018, and today’s decision affirms the decision of Judge Douglas Harpool, rendered in June 2018.

“We have always believed that it was wrong for Missouri law to stand in the way of truthful media advertising,” said MBA president Mark Gordon.  “We believe today’s decision makes it crystal clear that Missouri broadcasters can deliver, and Missouri citizens can receive, truthful advertising about alcoholic beverage prices just as they can with other goods and services. The MBA has been working on this issue on behalf of Missouri’s broadcasters since 2011 and is pleased with today’s decision.”