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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.

juris_imprudent (mail):
Hey, it's commerce isn't it? Our govt knows no bounds when it comes to the regulation of commerce. Who dares to say that the [exceptionally] petty bureaucrats of the ATTT don't know what is best for the American people?

And I thought it was an over-reach when they started arresting transiting foreign nationals because their companies were processing payments for American gamblers.
2.18.2007 7:58pm
Stephen C. Carlson (www):
From the linked article (emphasis added):
Blake said the Red Sox have expressed their concern about the commercial, which can be seen on YouTube.com, to Matsuzaka’s marketing representatives, Architect Co. Ltd.

Is the ATTT taking jurisdiction over ads shown on YouTube.com or what?
2.18.2007 7:58pm
Simon Elliott:
I notice that the only time he is actually DRINKING is when he is wearing street clothes, not his sox uniform.

Goodness gracious, if we start drinking, smoking and womanizing we might all end up like babe ruth
2.18.2007 8:06pm
Scott Wood (mail):
I'm not pithy enough to find a different phrase, but "inane overregulation" does not do justice to something that is a clear violation of the principles of free speech. Arthur REsnick should be ashamed of himself, and the people who chose to make this claim have no business in government.
2.18.2007 8:07pm
logicnazi (mail) (www):
Reminds me of some of the HUD lawsuits against people who spoke out against low income housing.
2.18.2007 8:19pm
Ilya Somin:
I'm not pithy enough to find a different phrase, but "inane overregulation" does not do justice to something that is a clear violation of the principles of free speech. Arthur REsnick should be ashamed of himself, and the people who chose to make this claim have no business in government.

I don't disagree. In fairness to Mr. Resnick, however, his position is consistent with court decisions upholding bans on even nondeceptive TV advertsing of cigarettes, among other products. It's unlikely that agencies such as the ATTT would adhere to the First Amendment more rigorously than the courts do.
2.18.2007 8:24pm
anonVCfan:
Why would ATTT go after Dice-K and not Asahi?
2.18.2007 8:36pm
Richard Gould-Saltman (mail):
OK Am I missing something here? Setting aside the jurisdictional and constitutional questions here's what I see, shot by shot, (and I DON'T speak Japanese, but. . . )(leaving out mention of some of the pictures of swirling beer):
1. Dice-K, in dark room, starts to put on Bo-sox jersey over red underjersey;
2. He rubs his ears (a signal?)
3. A beer can
4. Dice-K pitches a ball, wearing only the red under-jersey, in a darkened room lit by a celing lamp. NOT a stadium, pretty clearly.
5. back to shot #1, finishes putting on jersey;
6. more beer
7. Dice-K drinks beer, outdoors, in broad daylight, wearing open-necked business shirt over white undershirt; neither Bosox jersey nor red underjersey anywhere in sight...
8. Shot of Dice-K pitching ball, in stadium, in uniform.



So NO discernable depiction of a temporal sequence to these events, I'd say....


This doesn't even seem to violate Resnick's interpretation of the reg., unless Mr. Resnick means, by his reading of the regulation, that a commercial violates the rules if the depiction of drinking simply occurs "prior to" the depiction of the athletic effort in the commercial, regardless of whether or not the commercial, explicitly or implicitly, suggests that there was any nearness in real time, or whether or not, as here, the commercial doesn't seem to suggest any particular temporal sequence at all.
2.18.2007 8:51pm
Can't find a good name:
anonVCfan: Maybe somebody at the ATTT was hoping to get some publicity for themselves and/or their agency by threatening the pitcher as opposed to the beer company. I'm a lawyer and I was a political science major in college, yet this was the first time I had ever heard of the Alcohol and Tobacco Tax and Trade Bureau.
2.18.2007 8:53pm
Can't find a good name:
anonVCfan: Maybe somebody at the ATTT was hoping to get some publicity for themselves and/or their agency by threatening the pitcher as opposed to the beer company. I'm a lawyer and I was a political science major in college, yet this was the first time I had ever heard of the Alcohol and Tobacco Tax and Trade Bureau.
2.18.2007 8:53pm
Craig Oren (mail):
The Alcohol and Tobacco Tax and Trade Bureau was created by the Homeland Security Act of 2002. It is the successor of the old Bureau of Alcohol, Tobacco and Firearms. Congressman John Dingell of Michigan once referred to that Bureau as a "jack-booted gestapo."
2.18.2007 9:08pm
anonVCfan:
I'm very curious about what actually happened here, and the sources to which Prof. Somin links don't cite a source or say anything about what the ATF has actually done or what it has threatened to do. The quote is pretty ambiguous: "According to Arthur Resnick,. . . Matsuzaka’s Asahi ad may merit punitive action."

"may merit punitive action"?

Is this a great moment in government overregulation, or just another example of a public official putting his foot in his mouth?

Methinks the alarm hath sounded prematurely.
2.18.2007 9:10pm
anonVCfan:
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 ATF ruling to which Resnick refers is here.

The ruling cites 27 U.S.C. sec. 205(e)-(f) as its source of authority. Those subsections are too lengthy to reprint here, but the beginning of the statute states that "It shall be unlawful for any person engaged in business as a distiller, brewer, rectifier, blender, or other producer, or as an importer or wholesaler, of distilled spirits, wine, or malt beverages, or as a bottler, or warehouseman and bottler, of distilled spirits, directly or indirectly or through an affiliate:" then lists the illegal practices in subsections.

It seems to me that the regulated party here is Asahi, not Dice-K. I'd be surprised if Asahi needed to run its Japanese ads by the ATF, but if that's the law, then I'm not too upset over the prospect of Asahi facing fines. I'm still not sure what the basis is for thinking that the ATF is going to personally sanction Dice-K somehow.
2.18.2007 9:19pm
wondering (mail):
I thought that in the US an athlete couldn't hawk beer until he retired. Is that just a norm or is it positive law?
2.18.2007 9:33pm
Charlie (Colorado) (mail):
I'm just a little confused about the whole notion of jurisdiction here. The ATFF has jurisdiction in Japan? Over Japanese ads?
2.18.2007 9:56pm
Not ATTT:
Just to clear something up, the official acronym for the Alcohol Tobacco Tax and Trade Bureau is not ATTT. It is actually TTB.
2.18.2007 10:08pm
bbeeman (mail):
Well, obviously ATFF thinks it has jurisdiction over what a Japanese company does in Japan.

I'm not sure what alternate reality these folks are in, but this seems to me to raise an extensive series of questions that need to be answered before ATFF should even think of heading down this path.

Alas, we may not be quite as far down the path to an overwhelming nanny state as the UK, but we are well on the road
2.18.2007 10:09pm
big dirigible (mail) (www):
? The Bureau of Alcohol, Tobacco, Firearms and Explosives is still operating as ATF. The web site is still there, and there are still people answering the phones at the ATF offices.
2.18.2007 10:32pm
Nick H.:
Commence mass Red Sox nation conversion to the LP in 3...2...1...
2.18.2007 11:18pm
Elliot123 (mail):
For a while now, I have wondered if the various campaigns by the blue noses among us are simply designed to hide the fact that we don't follow their teachings. They don't really care what we do, they just don't want us to spoil the fiction that we do follow their teachings.

We ruin the charade when we drink in public, gamble, and admit to sex. All of these are acceptable when hidden, but unacceptable when they demonstrate the message of the religious folks with the word "family" in their organization titles is being grossly ignored.
2.18.2007 11:50pm
Elliot123 (mail):
I saw four ATF vans at a fire today. Really. And at least ten guys with ATF jackets and blue helmets. I'd say they are still in business.
2.18.2007 11:51pm
Justin (mail):
in dingell's vague defense, he called them "jackbooted American fascists."
2.18.2007 11:55pm
anonVCfan:
Well, if only they'd stop wearing jackboots, they could easily silence Dingell.
2.19.2007 12:47am
JB:
Do the jackboots come all the way up to their jackasses?

Seriously, this is the US government's of the Danish Cartoon Riots, and is a result of the progressive loss of distinction between jurisdictions that has been going on for 70+ years in this country. When the NYC Mayor can dictate sales policy to gun manufacturers who don't do business in NYS, when the Commerce Clause can regulate frogs (or was it snails?) in a puddle in one state, why can't the ATTB regulate some other country?
2.19.2007 1:11am
LagunaDave (mail):
I think people are overreacting, and the story has been basically misreported.

The Boston Herald article is mainly about the local angle, as concerns the Red Sox and Major League Baseball. Then, in the last paragraph, they asked a media relations guy from ATF for comment. This guy has almost certainly never seen the commercial, and it's not even clear that he knows it's only running in Japan (that is not addressed in the quote). The ATF guy gives them a boilerplate statement, based on established case law in the US.

Probably it was a mistake for the ATF guy to comment, but if you read the Herald article, it is pretty obvious that they are not "going after" anybody, and the only reason they are involved at all is because the reporter called and asked for a comment.
2.19.2007 3:46am
Randy R. (mail):
Now, if he had taken a puff of pot, imagine what would have happened then!
2.19.2007 10:02am
professays (mail):
Beer turns a person into an alcoholic more often than other drinks.
2.19.2007 10:16am
pete (mail) (www):
I will point out that David Wells claimed at one point in his book to be "half-drunk" when he pitched his only perfect game, although he later revised that claim to being only very hung over at the time.

Doc Ellis claimed to have been under the influence of LSD shortly before he pitched a no hitter.

And that is not even getting into people like Ruth's drinking habits.

So it is not entirely clear that drugs and alcohol do not improve a pitcher's performance.
2.19.2007 10:24am
Waldensian (mail):

So it is not entirely clear that drugs and alcohol do not improve a pitcher's performance.

I'm unlikely to pitch in the major leagues, but there's no way I would pitch sober, that's for darn sure.
2.19.2007 10:27am
JRL:
Resnick is obviously a Yankees fan.
2.19.2007 10:28am
DeezRightWingNutz:
I think that the claim that alcohol can enhance athletic performance isn't deceptive, at least for all sports. I think alcohol is on the list of banned performance enhancing substances of the professional billiards sanctioning body.
2.19.2007 11:09am
Mongoose 388:
Any takers to join me in a Boston Beer Party? WoooooHooooooo!Give me Beer or death! Bring on the Coors Twins to lead the protest marches!
2.19.2007 11:49am
Houston Lawyer:
My law partner's golf swing improves dramatically after a few beers. Being partially impaired neither helps nor hinders my lousy swing.

I do tolerate bad traffic better after a couple of beers.
2.19.2007 11:50am
juris_imprudent (mail):

I think alcohol is on the list of banned performance enhancing substances of the professional billiards sanctioning body.

As any pub-crawler could tell you, no can throw a dart without at least a pint or two.
2.19.2007 12:42pm
neurodoc:
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”
So if Disney doesn't pay the most, then first thing winning Super Bowl quarterback might say on camera after the game rather than "I'm going to Disney World" would be "Give me a Bud," then chug it down? Wouldn't be a problem, at least from ATTTB standpoint, since it after the game.

And when noting great athletes who have done their thing under the influence, we should mention that gonzo downhill skier (name?) who proved such a disappointment in the last Winter Olympics, and certainly Mickey Mantle, who said he would see three baseballs coming at him and he would swing at the middle one.

Finally, speaking from a neurologic perspective, alcohol can be very effective, albeit only temporarily, for calming an essential tremor. So an athlete might overcome the problem with a bit of alcohol prior to performing, though a prescription medication like propanalol (Inderal) would probably be a better approach.
2.19.2007 1:16pm
Mike Keenan:
Isn't this simply an example of egregious reporting? Note that the quote by Resnick never refers to a Japanese ad. It merely states what the law is. The reporter gives the impression that Resnick thinks the law is applicable to this case, but Resnick doesn't say that.
2.19.2007 1:51pm
countertop (mail):
anytime a governemnt agency can make life miserable for the Boston Red Sox, I am all for it (even if said agency's actions do border on the obscene).

For one, there is no city or state more deserving to feel the hand of overzealous arbitrary regulatory justice than (modern day) Boston, Massachuessets.

For another, the Red Sox are pure evil.

and yes, I am an unabashed Yankee Fan!!!
2.19.2007 2:01pm
Ilya Somin:
Isn't this simply an example of egregious reporting? Note that the quote by Resnick never refers to a Japanese ad. It merely states what the law is. The reporter gives the impression that Resnick thinks the law is applicable to this case, but Resnick doesn't say that.

I assume that Resnick gave his answer in the course of being asked about Matsuzaka. If it was taken out of context, the ATTF could have issued a clarification or denial. Yet it has not done so, despite the extensive publicity that this article and the quote by Resnick have gotten on the internet and in the print media.
2.19.2007 2:26pm
Ilya Somin:
anytime a governemnt agency can make life miserable for the Boston Red Sox, I am all for it (even if said agency's actions do border on the obscene).

.....
For another, the Red Sox are pure evil.

and yes, I am an unabashed Yankee Fan!!!


It stands to reason that fans of the Evil Empire would adopt George Steinbrenner's ends justify the means philosophy.
2.19.2007 2:28pm
NickM (mail) (www):
I believe alcohol is a mandatory performance-enhancing substance for bowling. It is also clinically proven to lessen your resistance to putting on those shoes.

Nick
2.19.2007 2:34pm
Siona Sthrunch (mail):
I think the rhetoric in the original post is inappropriate and unacceptable.

Smolin states that he will not "get into a technical first amendment analysis here" and in the next sentence says it is a "clear violation of constitutional free speech even if courts have wrongly concluded otherwise."

If courts have concluded that the regulation is not a violation of free speech protections, then (1) more analysis that it is a violation is necessary to support that argument; and (2) the violation is not "clear."

Smolin continues: "What makes the ATTB action against Matsuzaka particularly reprehensible...." But Smolin has not shown the action is reprehensible at all - only that in his view and without analysis the regulation is "clearly" unconstitutional despite what the courts have said. If the courts have upheld the regulation, then how can enforcing it be reprehensible? Smolin is confusing the wisdom of enacting the regulation with the different issue of whether it should be enforced.

In conclusion, although Smolin may be correct that the regulation is unconstitutional, and may be correct that the regulation is unwise, and may be correct as well that it cannot or should not be enforced extraterritorially; Smolin's logic and rhetoric in his post are inappropriately sloppy.
2.19.2007 2:49pm
HLSbertarian (mail):

In conclusion, although Smolin may be correct that the regulation is unconstitutional, and may be correct that the regulation is unwise, and may be correct as well that it cannot or should not be enforced extraterritorially; Smolin's logic and rhetoric in his post are inappropriately sloppy.


I think the only "inappropriately sloppy" thing here is your spelling of our host's name.

Prof. Somin is perfectly free to point out entertaining or egregious uses of government power without authoring a legal opinion for you every time he does. Plenty of us here appreciate these posts for many different reasons. If the technical legal aspects of it interest you, you should comment on those and see if anyone else is interested in following you down that road.
2.19.2007 3:33pm
wooga:

If the courts have upheld the regulation, then how can enforcing it be reprehensible?

Although you are correct that the Prof's use of "clear" violates one of the cardinal laws of the universe (if a lawyer says something is 'clear,' it is anything but), your above quote is profoundly revealing as to your views of morality and the law. I certainly don't want you anywhere near the levers of power.
2.19.2007 6:43pm
BobNSF (mail):
It brings tears to my eyes to read so many impassioned posts defending the constitutional right of sports figures to acquire another few hundred million dollars in endorsement contracts from an as yet -- pardon me -- untapped market. With these poor guys now having to slug it out with bonus-laden Wall Street brokers in the fight for America's prime real estate, it's good to see so many on their side.

Burp!
2.19.2007 7:31pm
BobNSF (mail):
All kidding aside, it's deplorable for U.S. agents to be sticking their noses into another country's market and culture.
2.19.2007 7:35pm
LagunaDave (mail):

All kidding aside, it's deplorable for U.S. agents to be sticking their noses into another country's market and culture.


Except that there is no evidence that they are. We don't know whether the press guy was fully informed of all the facts, he doesn't mention the Japanese commercial specifically, what is shown in the Japanese commercial doesn't meet the criteria for actionability that he recited (even if the law applies to a Japanese commercial) and the only reason the Feds are involved at all is because a reporter asked for comment (and we don't know know what he related about the issue in asking).
2.19.2007 10:43pm
LagunaDave (mail):
The regulations in question are here.

Section 7.2 (referring to everything that follows) says:


This part applies to the several States of the United States, the District of Columbia and the Commonwealth of Puerto Rico.


Section 7.51 defines advertising as:


As used in §§7.50 through 7.55 of this part, the term “advertisement” includes any written or verbal statement, illustration, or depiction which is in, or calculated to induce sales in, interstate or foreign commerce, or is disseminated by mail, whether it appears in a newspaper, magazine, trade booklet, menu, wine card, leaflet, circular, mailer, book insert, catalog, promotional material, sales pamphlet, or in any written, printed, graphic, or other matter accompanying the container, representations made on cases, or in any billboard, sign, or other outdoor advertisement, public transit card, other periodical literature, publication, or in a radio or television broadcast, or in any other media; except that such term shall not include: [...]

(emphasis added)

But "interstate or foreign commerce" is defined in 7.10:


Interstate or foreign commerce. Commerce between any State and any place outside thereof, or commerce within any Territory or the District of Columbia, or between points within the same State but through any place outside thereof.


The advertisement is question does not involve commerce originating or between any states, and it seems obvious that the statute as a whole (with detailed labeling requirements, etc) does not apply to foreign countries. To suggest otherwise is to suppose that the US would bring action against a foreign bottler for failure to adhere to US labeling requirements in a foreign market.

Moreover, there is no hint of criminal penalties for any individual who appears as an actor in a commercial which violates the guidelines. Sanctions, if any, would be directed at the company doing the advertising, and are limited to refusal of approval for the labeling and sale of the product.

This whole story is a red herring...
2.19.2007 11:05pm
Can't find a good name:
Upon further research, it turns out that the ATF and the TTB are two separate bureaus. The ATF is part of the Dept. of Justice and the TTB is part of the Dept. of the Treasury.

The TTB was spun off from ATF in 2003 according to the TTB web site.

As the later commenters suggest, there may really be nothing to this story; the TTB is probably not going to attempt to enforce the law against a party who would not be liable, for an advertisement not within the bureau's jurisdiction.
2.20.2007 3:15am
Insignificant Dallasite:
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...


Then how have we all seen it? Assuming for a moment that the ad would violate US law if brodcast on television, should the seller escape liability simply because he distributes the ad over Youtube instead?
2.20.2007 1:27pm
derek (mail) (www):
If it was taken out of context, the ATTF could have issued a clarification or denial. Yet it has not done so, despite the extensive publicity that this article and the quote by Resnick have gotten on the internet and in the print media.

Extensive publicity? Like on Volokh.com? C'mon Ilya.

Hey, I have an idea. Why not call the TTB and see what they meant?
2.20.2007 4:21pm
wooga:

Assuming for a moment that the ad would violate US law if brodcast on television, should the seller escape liability simply because he distributes the ad over Youtube instead?

Of course. The federal government has regulatory power over television because it is a limited access medium (practically, there are only so many airwaves). I don't think the feds have the constitutional authority to mess with the content of YouTube. Then again, I'm one of those federalists who rejects the chaos theory of interstate commerce.
2.20.2007 4:32pm
Ilya Somin:
Extensive publicity? Like on Volokh.com? C'mon Ilya

No, like on ESPN, the Boston Herald, and a number of other US newspapers. To say nothing of Japanese media. Hard as it is to believe, many of these news outlets have an even bigger audiene than the VC.
2.21.2007 12:49am