Invasion of the Bottle Snatchers

How the neoprohibitionists got into your liquor cabinet

On a quiet street in Wilkes-Barre, Pennsylvania, there is a nondescript diner with a doorbell near the entrance. In the wee hours of the morning the diner is closed, but if you ring the bell, someone will answer. If he knows you or one of your companions, he will guide you through the darkened restaurant to a door in the back, beyond which lies a tavern that illegally serves drinks after all the other bars in town have closed. The place seems to be an anachronism, a throwback to the speakeasies of the Prohibition era.

But more than half a century after repeal, the spirit of Prohibition lives on in the form of numerous restrictions that reflect America's fundamental ambivalence toward alcohol. (Although most Americans drink, a 1988 Gallup poll found that majorities also favor a variety of control measures, including excise taxes and warning labels.) In addition to the legacy of post-repeal fears, Americans face a set of recently enacted and proposed control measures that observers identify with a neoprohibitionist trend in public policy.

"There's been a tremendous anti-alcohol upsurge," says Washington University sociologist David J. Pittman, who has studied alcohol issues for more than three decades. Pittman, a prominent critic of neoprohibitionism, says we are in the midst of the third major temperance movement since 1820.

Unlike its predecessors, the third wave is not primarily moral or religious in tone. Rather, like so many other statist movements in this risk-averse age, the New Temperance focuses on health and safety. Its proponents—which include the World Health Organization and the U.S. Department of Health and Human Services as well as such private advocacy groups as the Center for Science in the Public Interest—argue that drinkers must be saved from themselves, lest their health suffer as a result of excessive consumption. Further, pointing to the role played by alcohol in violence and traffic accidents, they maintain that drinking endangers public safety.

New Temperance advocates, both in and out of government, have set as their goal a reduction in per capita alcohol consumption. They seek to achieve this goal both directly, by restricting the availability of alcoholic beverages, and indirectly, by stigmatizing beer, wine, and liquor as inherently bad. For example, Loren Archer, deputy director of the National Institute on Alcohol Abuse and Alcoholism, has declared there is no such thing as responsible drinking.

Although the 21st Amendment left alcohol control in the hands of the states, New Temperance lobbyists have been focusing their efforts on the federal government in an attempt to develop a national alcohol policy. The movement's most conspicuous successes illustrate its two-track approach. A 1984 law has restricted availability by threatening to withhold federal highway funds from any state that did not raise its legal purchase age to 21 by July 1987. A 1988 law has helped to delegitimize alcohol by requiring health-and-safety warning labels on every bottle of beer, wine, and liquor. Yet to come, if the neoprohibitionists have their way, are federal excise-tax increases and further advertising restrictions.

The New Temperance advocates have succeeded by framing the debate over control measures so that their critics appear to be opponents of health and safety. The main impetus for the purchase-age legislation, for example, was concern about the disproportionate number of young people killed in traffic accidents involving alcohol. Ronald Reagan, that champion of states' rights, originally opposed the bill but caved in to pressure from lobby groups such as Mothers Against Drunk Driving (MADD). In Dole v. South Dakota, the U.S. Supreme Court upheld the law under the pretext that a state could, in theory, choose to forfeit its highway money rather than raise its minimum purchase age. In practice, every state eventually gave in, although Wyoming held out until March 1988.

Christine Lubinski, a spokesperson for the National Council on Alcoholism (NCA), says the federal arm twisting was justified by an important public interest. "The evidence was overwhelming that an increase in the drinking age led to a reduction in drunk-driving fatalities," she says. "I don't give a damn, frankly, about whether [the law] was appropriate."

Aside from the constitutional issue, however, there are several reasons to question the increase in the alcohol purchase age. First of all, statistics contradict the impression, created by MADD, the NCA, and other pressure groups, of a drunk-driving crisis. According to the U.S. Department of Transportation, the proportion of drivers involved in fatal crashes who were intoxicated declined from 30 to 26 percent between 1982 and 1986; for teenage drivers, the figure dropped from 28 to 19 percent.

Second, the evidence that increasing the purchase age reduces fatalities is, in fact, less than overwhelming. "The jury is still out on that," says Pittman, the Washington University sociologist. "The research is very mixed." For example, a 1988 study at Indiana University found decreases in alcohol-related problems such as drunk driving, but concluded that "these changes were already beginning to occur prior to any change in the drinking age laws on the national level."

Third, even if raising the purchase age did reduce drunk-driving accidents, that would not be a sufficient reason to do so. Clearly, if increasing the purchase age to 21 saved lives, raising it to 25 or 30 would save still more. After all, reports the Transportation Department, traffic accidents, most of them alcohol-related, are the leading cause of death among Americans between the ages of 5 and 34.

Lubinski of the NCA recognizes where the logic of raising the purchase age leads. "There's no question that 21 is an arbitrary number," she says. "You can't get away with raising the drinking age to 25. That's not politically feasible."

More fundamentally, the argument for raising the purchase age reveals the neoprohibitionist tendency to ignore personal volition. Control advocates act as if traffic fatalities are an inevitable result of alcohol consumption. But alcohol-related accidents do not result from drinking—or from driving, for that matter. They result from the dangerous combination of the two. To cite highway deaths as an effect of alcohol consumption, as control advocates do, you must assume there is no choice, and therefore no responsibility, involved in drunk driving. Such reasoning disguises an issue of criminal law as an issue of safety regulation.

Although the neoprohibitionists tend to ignore the role of individual choice in drunk driving, they recognize that it plays a part in alcohol consumption. In fact, they are eager to help consumers make up their minds. At least, that is the ostensible motivation for the warning labels that were required on all alcoholic beverages as of November 18, 1989. Ironically championed by Mr. Tobacco, Sen. Strom Thurmond (R–S.C.), the labels were promoted as a simple educational device. "Consumers have a right to know about the health and safety risks of a product," says Pat Taylor, director of the alcohol project at the Center for Science in the Public Interest (CSPI). "It's a very standard consumer-information strategy."

Standard it may be, but the warnings are not terribly helpful. For example: "Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery, and may cause health problems." This is not exactly news.

The other warning on the label is more misleading than gratuitous: "According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects." Medical experts say fetal alcohol syndrome has been observed only in the children of heavy drinkers, and there is no evidence that light consumption harms the fetus.

Dr. Henry Rosett and Lyn Weiner, of Boston University, conclude in Alcohol and the Fetus that "the recommendation that all women should abstain from drinking during pregnancy is not based on scientific evidence, since no risks have been observed from small quantities." Indeed, according to Dr. Jack Mendelson of Harvard University, "it is possible that some doses of alcohol, low or moderate, may improve the probability for healthy pregnancies and healthy offspring."

Lubinski defends the Department of Health and Human Services' absolutist stand on drinking during pregnancy. "It's important to stress that there is no known safe level of alcohol during pregnancy," she says. "The correct course is not to drink at all."

But this position requires the alcohol industry to prove a negative. No matter how many studies fail to find a risk from moderate consumption, drinking during pregnancy remains suspect. In any case, especially given the controversy, "consulting one's physician would be more appropriate than consulting a label on a beer can," says Jeff Becker, a spokesperson for the Beer Institute.

Gene Ford, a Seattle author and editor of his own Moderate Drinking Journal, has led a virtual one-man crusade to change the wording of the warning labels. Not only does the warning about drinking during pregnancy misrepresent the scientific research, Ford says, but the label taken as a whole gives the impression that drinking per se is bad, because the message makes no distinction between moderate and excessive consumption. And, unlike government-mandated labels on other products, it makes no mention of alcohol's health benefits—in reducing the chances of coronary disease, for example.

Pittman agrees that the failure to make any reference to dosage is glaring. "It's such a general, vague statement that it has no meaning," he says. "Basically, it says drinking is hazardous to your health. That's a false statement.…Alcohol in small quantities is not injurious."

Pittman, who testified against warning labels during congressional hearings in 1979, says research shows that people don't read such messages until after they buy the product, anyway. "I think they will have no effect whatsoever in terms of changing the behavior of individuals," he says. Pittman acknowledges that some supporters of warning labels may genuinely believe they are doing consumers a service, but he says many are motivated by a desire to stigmatize the product.

Despite such objections, industry groups were remarkably quiet during the debate over warning labels. The Beer Institute circulated a position paper but did not testify. Neither did the Distilled Spirits Council of the United States (DISCUS). "We did not oppose it," says DISCUS spokesperson Janet Flynn. Asked to explain why, she clarifies, "We chose not to oppose it."

One reason for the reticence may have been the hope that warning labels would do for the alcohol industry what they did for the tobacco industry—provide a virtual blanket of protection from legal liability. Pittman notes that the industry decided not to fight the warning labels shortly after parents of fetal alcohol syndrome babies filed multi-million-dollar lawsuits against liquor companies.

Wine Institute president John DeLuca says his group lobbied against the original version of Thurmond's bill, which would have explicitly ruled out the use of federal warnings as a defense for manufacturers. After this and two other points were changed, the institute let the bill slide, although it remained opposed to the law in principle.

But the industry may not need the warning labels to help it win suits. On May 17 a federal jury absolved Jim Beam of responsibility for the birth defects suffered by the child of a Seattle woman who had drunk about half a fifth of bourbon virtually every day during her pregnancy. The woman's attorneys argued that a warning label could have deterred her from drinking.

That is the neoprohibitionist position writ small. People cannot be trusted to make their own decisions about alcohol; they must be nudged, discouraged, and coerced. From this perspective, alcohol problems can best be solved by reducing alcohol consumption. Excise taxes are a favored method.

"Raising excise taxes is probably the most effective way to reduce drinking-and-driving fatalities," says Taylor of the CSPI. "The way we're pricing alcohol now is not good for public health."

The federal excise tax, which is imposed on manufacturers and passed on to consumers, is 17 cents a gallon for table wine, 29 cents a gallon for beer, and $12.50 a proof gallon for liquor. The combination of federal and state taxes represents nearly half the cost of a bottle of liquor. The CSPI wants to double the federal tax on liquor and then raise the taxes on beer and wine to the same level, allowing for alcohol content.

The main rationale for increasing excise taxes is that higher prices will discourage consumption, thereby reducing alcohol abuse. Consumption control is an article of faith among the government officials and private advocates who carry the New Temperance banner. Aside from its disregard for personal freedom, the main problem with this approach is that it does not work.

Pittman and other critics of neoprohibitionism, such as psychologist Stanton Peele of Mathematica Research in Princeton, New Jersey, have pointed out that there is no necessary connection between per capita consumption and alcohol problems. Thus, international studies find that some countries with relatively high consumption levels, such as Belgium and Argentina, have relatively low rates of alcohol-related violence and hospital admissions, while some nations with low consumption levels, such as Ireland and Finland, have more problems. The incidence of alcohol abuse also varies across ethnic groups within the United States and is often high despite a low overall consumption level. Blacks, for example, drink less per capita than whites, but suffer more from alcohol-related problems. Peele also notes that Americans drank three times as much as they do now in colonial times, yet alcohol problems were far less common.

The relationship between drinking levels and abuse depends largely on the distribution of consumption. In the United States, about two-thirds of the adult population drinks. Even control advocates acknowledge that fewer than 10 percent of American drinkers are abusers. CSPI suggests that while heavy drinkers are responsible for a disproportionate share of alcohol problems, light and moderate drinkers still account for most of the bad effects. This is, at best, an unproven and controversial assertion.

If a small minority of heavy drinkers is responsible for most of the alcohol-related problems, a reduction in per capita consumption, brought about by an increase in excise taxes or some other restriction on availability, would have little or no effect on the level of abuse. You would expect alcohol-dependent people to be unresponsive to price increases or other obstacles. So raising excise taxes might simply drive the moderate drinkers from the market, while abusers either spent more on alcohol and less on other goods or switched to cheaper brands, moonshine, nonbeverage alcohol, or other drugs.

Another argument for excise taxes is that they force consumers to consider the social cost of their behavior. Figured into this cost are the estimated number of alcohol-related deaths, from causes such as homicide, traffic accidents, and cirrhosis of the liver. There are about 100,000 such deaths each year, according to HHS. The social cost also includes such factors as treatment and support, crime, property damage, incarceration, and lost productivity. Citing government studies, the CSPI says alcohol problems cost society about $117 billion in 1983. HHS predicts the cost will climb to $134 billion this year.

There are some problems with these figures, not the least of which is the difficulty of calculating what share of certain costs can be attributed to alcohol. Counting traffic deaths, for example, assumes that drinking in general directly causes accidents; this is the same fallacy that underlies support for increasing the purchase age as a solution to drunk driving. Moreover, most of alcohol's social cost is supposedly due to lost productivity, a notoriously mushy concept.

Then there is the question of who this "society" is that pays for all these things. If a drunk plows his car into a pedestrian, there is an external cost involved. But if he merely drinks himself to death, that would seem to be his problem, not society's.

The control advocates do not make this distinction. In their view, excise taxes help pay for the damage done by drinkers, whether to themselves or to others. Pittman points out that the same rationale could apply to virtually any potentially harmful product. "People abuse all kinds of products, but we don't tax them," he says. "There's no special tax on sugar because people get diabetes. We don't tax the fat content in milk because too much fat clogs the arteries." More to the point, the social-cost model, like the warning labels, ignores the distinction between use and abuse. It conceals the fact that excise taxes punish the vast majority of drinkers for the sins of a few.

While excise taxes make sense if you believe that reducing consumption is the best way to control alcohol abuse, the neoprohibitionist obsession with advertising is harder to understand. Former Surgeon General C. Everett Koop has been particularly vocal in this area. A workshop that he convened in December 1988, ostensibly to study drunk driving, issued a report that recommended mandatory warnings on alcohol ads, anti-alcohol messages for which the industry would have to pay, and elimination of the tax deduction for alcohol advertising expenses. Last May Koop called a press conference to criticize beer companies' use of celebrity representatives who appeal to young people and their sponsorship of rock concerts and sporting events.

Both the CSPI and the NCA support a law that would require radio and television broadcasters to air one health-and-safety message for every beer or wine commercial. The CSPI's Taylor says it would be up to the stations to decide how to pass the cost along. The Beer Institute's Becker is understandably appalled at the idea. "Who's going to pay for it?" he asks, wondering if an auto-safety message for every car commercial will be next. "Where do you draw the line? What product is 100 percent safe?"

For the neoprohibitionists, alcohol advertising is different because it involves a clear evil. "We need to scrutinize $1 billion of glitzy drug pushing on TV," Lubinski says. The NCA doesn't just want to scrutinize beer and wine ads—it wants to ban them from shows with audiences that include a substantial number of people under the age of 21. Lubinski isn't sure just how many underage viewers it would take to make a program's commercial time off-limits to beer and wine companies.

The CSPI also objects to billboards using black celebrities to advertise alcoholic beverages in poor neighborhoods. "We think that type of targeting should not be allowed," Taylor says.

The advertising restrictions pushed by HHS, the CSPI, and the NCA would be in addition to existing requirements imposed by industry standards and federal regulations. Liquor, for example, has never been advertised on radio or television. In view of lingering prohibitionist hostility following repeal, the industry refrained from using these media, a stance that was incorporated into its Code of Good Practice. Similarly, although no law prohibits it, beer and wine commercials never show people actually drinking. Federal restrictions on alcohol advertising include a ban on statements about health benefits or nutritional properties.

Why all this concern about advertising? The CSPI argues that "alcohol advertising tends to glamorize alcohol use and presents a one-sided view without information about the risks of drinking." Is this so appalling? One is hard pressed to think of advertisers who try to sell their products by denigrating them, associating them with negative images, and warning about the dangers of misusing them. But, say Koop and others, the $2 billion spent each year on advertising alcoholic beverages encourages drinking. Aside from the fact that this is troubling only if one thinks of drinking as inherently bad, there is no evidence that it is true.

For one thing, although advertising expenditures have increased dramatically during the past decade, drinking has declined, a trend that is expected to continue through the end of the century. Between 1980 and 1987, beer consumption dropped 7 percent, wine consumption fell 14 percent, and liquor consumption declined 23 percent, according to the industry publication Impact. Control advocates see such figures as a sign of their success—a result of education, excise taxes, and purchase restrictions. Were it not for alcohol advertising, Lubinski says, consumption probably would have declined further. But pressed for evidence that advertising increases consumption, she can only cite research suggesting it encourages attitude changes. As any social psychologist can tell you, the connection between attitudes and behavior is tenuous at best.

"Nobody has been able to demonstrate that advertising does anything more than shift brand preferences," Pittman says. "It surely doesn't increase consumption." A 1985 research survey by the Senate Subcommittee on Alcohol and Drug Abuse came to a similar conclusion.

Ford suggests that people who oppose alcohol advertising simply reject the possibility that beer, wine, and liquor have a positive role to play in society. Emblematic of that attitude are activists such as Dr. Trisha Roth, a pediatrician known as the Carry Nation of Beverly Hills. Roth, a teetotaler, has reported about 40 restaurants and instituions, including her own synagogue, for violating a state law that imposes a $2,500-a-day penalty on establishments that serve alcohol and fail to post signs warning about birth defects and cancer. She has campaigned against the serving of alcohol at city events and fundraisers for charitable organizations. She convinced the Beverly Hills Unified School District to cancel a wine-tasting class for adults, and she called in a vice-squad officer to investigate plans for an after-prom party in West Hollywood.

On the national level, Ford cites expurgation of references to responsible drinking from government publications, the repeated association of alcohol with illegal drugs, and the refusal to consider research showing health benefits from moderate use as evidence of a systematic effort by health officials and advocacy groups to brand alcohol with a skull-and-crossbones. A former salesman for Christian Brothers winery, Ford criticizes the industry for yielding to control measures and failing to defend itself vigorously.

There is no question that manufacturers have been cowed by the hostility of the neoprohibitionists, the threat of lawsuits, and the general ambivalence of the American public. Although research has found that moderate drinkers tend to live longer than either heavy drinkers or abstainers, federal regulations discourage industry representatives from even talking about the benefits of alcohol. Understandably, they are also afraid to comment on the advisability of moderate drinking during pregnancy.

Although DISCUS, the Beer Institute, and the Wine Institute all opposed the federal purchase-age mandate in principle, none actively lobbied against it. The warning-label bill did not generate much more of a response. In California, the Wine Institute actually supported a 10-fold increase in the state excise tax, from 1 to 10 cents a gallon.

"It was an investment in our credibility," says DeLuca, the group's president. "We're seen as always opposing excise taxes." By giving in on an increase, he says, the wine industry preempted the excise-tax issue. "The question is, is it 1 cent to 10 cents or 1 cent to $1.60? The proposals have been draconian."

Why is the alcohol industry so bullied in a nation where a majority of adults use its products? "America is a very ambivalent country," Peele says. "We tend to want to influence people not to drink at all. We don't do a very good job at encouraging sensible consumption."

There is strong evidence that such an attitude breeds abuse. For example, a survey reported in The Journal on Alcohol Studies in 1986 found that states with the most restrictive alcohol laws—the top three are Utah, Kentucky, and Mississippi—have the most alcohol problems. Similarly, dry towns in Tennessee tend to have greater problems with alcohol than wet towns. One explanation for this phenomenon is the "forbidden fruit syndrome"—prohibiting something makes it more attractive. More important, a prohibitionist approach encourages people to drink large quantities surreptitiously and makes teaching responsible drinking difficult or impossible. Peele points out that alcohol problems are less common in countries, such as Italy and Greece, where good drinking habits are inculcated from an early age. Alcohol is an accepted part of the culture, and it does not have the same mystique as in the United States.

Peele says the notion of alcohol addiction encourages an all-or-nothing attitude toward drinking, a belief that moderation is impossible. For example, Dr. Ernest F. Noble, former director of the National Institute on Alcoholism and Alcohol Abuse, has said that everyone is a potential alcoholic.

Alcoholics, of course, can't help themselves, so government must step in. Ford's answer to that paternalistic attitude is typically combative: "I think we should tell the prohibitionists to stick it up their ass. I'm tired of their sanctimonious poop." He says the key to fighting further restrictions is to mobilize all the groups that benefit from the alcohol industry.

Pittman takes the long view. "The last [temperance] surge went on for about 30 years," he says. "We're just at the beginning of this surge. The real battle will be in the 1990s."

Jacob Sullum is assistant editor of REASON.

Bar Hoppin' USA
Among the many quaint sights in Charleston, South Carolina, is the view behind any bar in a tavern or restaurant: row after row of those cute, single-serving liquor bottles they use on airplanes. As it happens, this is not part of a local conspiracy to elicit smiles from tourists. State law limits the size of liquor bottles that may be used in bars to 50 milliliters.

South Carolina's fetish for little bottles is but one aspect of the convoluted alcohol-control system unleashed by the repeal of Prohibition in 1933. The 21st Amendment freed the states to regulate alcohol however they wished. Since then each state has gone its own way, producing a baffling array of laws and regulations.

The states can be divided into two general categories: those that regulate the distribution of alcoholic beverages and those that directly control it. In 32 states and the District of Columbia, the government licenses private businesses to distribute and sell alcohol. In the 18 control states, packages of wine and liquor (and, in some cases, beer) are sold only in stores operated by the government (except in Mississippi, where private retailers—but not distributors—are allowed). Hotels, bars, and restaurants must buy their alcohol through the state system.

State alcohol monopolies are eager to prevent their citizens from buying elsewhere, whether in other states or from black-market distributors. So they impose restrictions on the amount of alcohol you can import into the state without paying a tax or holding a permit. (The 21st Amendment carved out an exception to the Interstate Commerce Clause, which otherwise forbids internal trade barriers.) Moving from Charleston to Los Angeles, I inadvertently broke the law in Alabama and Mississippi by carrying two bottles of wine in the back of my car.

Although useful, the neat dichotomy between license states and control states is somewhat misleading; every state's system is unique. In California, you can buy beer, wine, and liquor in supermarkets and drugstores. In Pennsylvania, you can buy bottles of wine and liquor only at state-operated stores, and you can get a six pack of beer only at specially licensed outlets. In South Carolina, you can buy beer and wine at the grocery store, but not on Sundays.

Every state except Nevada, the most permissive, forbids sales during certain hours, generally in the early morning. To further complicate matters, legal hours may vary from town to town, and 37 states allow individual counties or municipalities to ban alcohol completely.

Presumably, restricting the hours of operation is supposed to protect public safety by discouraging all-night binges. But it hardly seems realistic to assume that people would drink 24 hours a day if bars were permitted to stay open all the time. Indeed, the restrictions themselves encourage irresponsible drinking by prompting people to gulp their drinks at last call, just before hitting the road. Last year, DeKalb County, Georgia, cracked down on bars that served giant mixed drinks, priced at $20 to $30, to customers who wanted to linger after last call. The drinks, the equivalent of five cocktails, could be nursed for hours. The county commission did not approve, so it passed a rule requiring bars and restaurants to collect all glasses within 30 minutes of last call, thereby creating a strong incentive for customers to finish off the jumbo drinks in less than half an hour.

Election-day laws—which require bars to close during polling hours in a dozen states—seem to be based on the same premise as hour restrictions: Given the choice, people would prefer getting plastered to virtually any other activity, including exercising the franchise. The sponsors of such laws were also concerned about the time-honored practice of buying votes with liquor. Whether or not these are realistic fears, surely the right to vote includes the right not to vote, for whatever reason; and if it truly is my vote, why can't I sell it for a glass of whiskey? Anyway, closing the bars during polling hours didn't stop Arizona from electing Evan Mecham.

Other state alcohol regulations violate the separation of church and state. You cannot legally buy a drink on Christmas in Michigan, New Mexico, North Dakota, Indiana, or Tennessee. And every state except Nevada restricts the sale of alcoholic beverages on Sunday or allows localities to do so; some, such as Arkansas and Louisiana, prohibit Sunday sales altogether, and others require special permits.

Advertising and promotion restrictions are also common. In seven states the alcoholic beverage authority has the power to censor any ads it deems inappropriate, and most states have some specific ad restrictions. Five states, including Rhode Island and Minnesota, ban price advertising. Maine prohibits depictions of drinking in magazine and newspaper ads. In New Hampshire, alcohol advertisers may not refer to Easter or Mother's Day, use biblical characters, or show a woman in provocative dress. In Ohio, Santa Claus is off-limits, as are portrayals of intoxication or lewdness. Utah, the most restrictive state, adds the Easter Bunny and childhood to the list of no-nos; it also prohibits the use of coupons, contests, billboards, free sampling, and signs or promotional novelties donated by manufacturers.

So is prohibitionism back? In many ways, it never left.

—Jacob Sullum