HB433 Upholds Free Speech in Missouri’s Free Marketplace
By David Overfelt, President, Missouri Retailers Association
Missouri retailers of alcohol may currently offer discounts and specials just like other businesses. But unlike other businesses, they cannot publicly advertise actual truthful retail prices through newspapers, radio and TV.
It’s a bizarre example of government censorship that dates to the repeal of Prohibition in the 1930s – and it conflicts with the last 40 years of U.S. Supreme Court rulings protecting commercial free speech.
House Bill 433 would fix this constitutional issue, upholding free speech in Missouri’s free marketplace and strengthening truth in advertising for consumers.
HB433, which has been voted do-pass by the House General Laws and Rules committees, would allow retailers to truthfully advertise their actual prices for alcohol.
HB433 is a pro-active approach to benefit consumers and free-marketplace competition while shedding unconstitutional language from Missouri laws and regulations. It allows retailers to “Purchase, publish, and display advertisements that list the amount of the rebate or discount and the retail price after the rebate or discount.”
This allows consumers to compare prices through truthful advertising. Courts have consistently ruled that is how free speech in the free marketplace is supposed to work.
In 1976, the Supreme Court ruled that “the free flow of commercial information is indispensable” in a free market system. (Va. State Board of Pharmacy v. Va. Citizens Consumer Council, Inc.). And in 2011, the nation’s highest court declared, “The fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech” (Sorrell v. IMS Health, Inc.).
Citing Supreme Court decisions protecting First Amendment rights, the 8th U.S. Circuit Court of Appeals in January reversed a lower court and reinstated a lawsuit alleging Missouri’s alcohol laws and regulations violate the constitutional guarantee of free speech.
The judges said Missouri’s restrictions are too broad, irrational and do “little, if anything” to “directly advance the interest in promoting responsible drinking.” For example, the judges noted the state’s censorship of ads with truthful alcohol prices means consumers must physically go into a store or bar to learn actual prices. That is just absurd.
The judges also wrote: “A theoretical increase in demand for alcohol based on a lower price does not necessarily mean any consumption of that alcohol is irresponsible.”
Missouri should not wait on the courts to throw out our laws and regulations, an outcome that seems certain based on this 8th Circuit declaration: “The multiple inconsistencies within the regulations poke obvious holes in any potential advancement of the interest in promoting responsible drinking, to the point the regulations do not advance any interest at all.”
HB433 does not affect Missouri’s strict laws against underage sales of alcohol, or selling alcohol to obviously intoxicated persons, or driving while intoxicated. HB433 also does not affect Missouri’s strong ‘Three Tier” alcohol regulatory system for manufacturers, distributors and retailers of alcohol.
The legislation simply allows advertising of truthful alcohol prices on TV, radio and newspapers by all retail sellers of alcohol.
Why would anyone oppose this? It’s pretty simple: They are afraid of free marketplace competition.
The loudest opponents are certain large-volume retailers who claim they have no fear of competition – but they oppose truthful advertising for consumers about prices. They are fine with restricting truthful consumer advertising in spite of the First Amendment, because they want to keep pocketing more money from consumers who cannot compare prices through public advertising.
I am writing on behalf of the Missouri Retailers Association and the Missouri Grocers Association, comprised of retailers with hundreds of Missouri locations and tens of thousands of employees. We are not afraid of competition – we welcome it because it’s good for consumers.
We join the Missouri Broadcasters Association, the Missouri Press Association and other advocates for truthful consumer advertising, free speech and a free marketplace in urging passage of HB433.
