ALCOHOL ALCOHOL LABELLING: SHORTCHANGING THE PUBLIC By Garth Bray Right-wing syndicated columnist Charles Krauthammer recently wrote a column about a perceived abuse of the U.S. court system: a lawsuit by Mrs. Candace Thorp of Seattle, Washington against James B. Beam Distilling Company, the manufacturers of Jim Beam bourbon, contending that drinking during pregnancy caused retardation and deformity in her child. "Between every idiot and his self-inflicted wound lies some object," wrote Krauthammer. "It is not the responsibility of every manufacturer of every product to think of every crank who might grossly misuse a product and wreak havoc." Krauthammer's thuggish sentiments mirror the position American alcohol producers adopt when challenged about the health consequences of consuming alcohol. Despite mounting scientific evidence linking alcohol consumption to a wide range of illnesses (from those traditionally associated with drinking, like cirrhosis of the liver and heart disease, to newly identified problems including fetal damage, gastrointestinal tract, muscle and pancreas injuries, and cancer of the stomach, large intestine, pancreas, throat, pharynx and esophagus), the industry ducks responsibility. In Thorp's case, Jim Beam Brands stood accused of negligence for not placing a warning on its whiskey bottles, alerting pregnant women that drinking might endanger fetuses. The company's attorneys responded at the trial last month with harsh attacks on the character of Mrs. Thorp, an alcoholic, and with a vehement denial that Jim Beam products contributed to the health problems of her son. More likely, they suggested, heredity and neglect caused the boy's retardation and physical deformities. Says Barry Epstein, Mrs. Thorp's attorney, "Jim Beam's strategy was basically to do everything they could to impugn the character of the alcoholic for being an alcoholic. The idea is that alcoholism is not a disease, it's a crime, and people should pay for their alcoholism. The defense came down to the claim, 'We create a product which causes a disease which is so devastating that it causes people to lose all sense and all ability to conform their actions, and as a result we should be exonerated."' The strategy apparently worked, as a federal jury acquitted Jim Beam. Alcohol manufacturers remain undefeated in legal battles over their liability for alcohol-related injury and death. According to Epstein, there have been only "a few" cases of this type. But when they have come up, alcohol manufacturers have invariably succeeded at scapegoating Krauthammer's "idiots" and "cranks", and at avoiding any responsibility of their own. This aggressive approach is also characteristic of the alcohol industry's defense of its product outside the courtroom. Through their trade associations, which include the Distilled Spirits Council, the Wine Institute, the Beer Institute and the Alcohol Policy Council, alcohol producers have vigorously opposed public education campaigns on the hazards of drinking. According to Patricia Taylor, Director of the Alcohol Policies Project at the Center for Science in the Public Interest (CSPI) in Washington, D.C., "Even the simple educational device of a warning poster, which effects retailers, restaurants and bars, has been opposed [by alcoholic beverage producers]." Alcohol producers have twice defeated proposals put forth by the Bureau of Alcohol, Tobacco and Firearms (BATF) which would have required them to list all ingredients in their products on the label. Beer makers, for example, are not required to identify the preservatives, alcohol content, or even the number of calories in their brews. Even the suggestion, now that all 50 states share the same drinking age, that manufacturers place a label on beverage containers to the effect that "This alcoholic beverage is not for sale to anyone under age 21" has met with industry scorn. James Sanders, president of the Beer Institute, wrote last year in the New York Times, "A few words on the side of a beverage container won't convince teen-agers who are already risking trouble with the law to put off drinking until they are 21. It is a lot more likely that such a label will act as a challenge, taunting adolescents to prove they can handle drinking no matter what the older generation says." Perhaps the most notable industry obstruction campaign, however, has been directed against efforts to require that alcoholic beverage containers carry a health warning label. The idea that the federal government should require such a warning dates back to an unsuccessful 1967 legislative proposal from Senator Strom Thurmond, R-SC. Other proposals followed, but the labelling movement could never overcome the opposition of alcohol producers. "Historically, the industry has fought this tooth and nail all the way," says Susan Galbraith of the National Council on Alcoholism (NCA), a major supporter of labelling legislation. "They've done whatever they could to prevent any successful effort to get warnings on alcoholic beverages." That all changed when an unusual series of legislative events led to the passage of a federal alcohol labelling law last year. An amendment hastily inserted into the Omnibus Antidrug Abuse Act of 1988 requires that by November, 1989, alcohol manufacturers place the following warning on all of their beverage containers: "Government Warning (1) According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects. (2) Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery, and may cause health problems." Why did the industry capitulate and allow enactment of this measure? Spokespersons for the various national trade groups refused comment on the subject. Susan Galbraith, however, charges that the industry faced an increasing number of court actions similar to the one filed by Candace Thorp which have focused judicial scrutiny on the issue of alcohol manufacturers' liability for the "new generation" of health hazards linked to their products, and saw labels as a way to limit its vulnerability. "What made things somewhat different this go- around was that they were faced with the first product liability suits on behalf of children with fetal alcohol syndrome and their families," says Galbraith. "Their concern about product liability, I think, served to push them, to force their hand: The idea is that if they put warning labels on their products, that protects them." Using a similar rationale, maintaining that drunkenness and certain other consequences of alcohol consumption are known and understood by "ordinary consumers" with "knowledge common to the community," courts have not held the industry liable for such incidents as alcohol-induced car accidents. The looming threat which Galbraith sees pushing producers to support warning labels is that consumers are now bringing liability actions for far less commonly known alcohol-related illnesses. A 1985 Health Promotion and Disease Prevention Survey found that only 57 percent of all Americans have heard of fetal alcohol syndrome. That percentage is surely lower still for some of the cancers and muscular diseases associated with alcohol consumption. In other words, the industry, itself aware of these risks, may eventually be held responsible for not sharing that knowledge with consumers. As tobacco producers know well, a simple label, in this case carrying the words "consumption of alcoholic beverages . . . may cause health problems," can spare an industry much trouble and expense. Granting the alcohol industry this presumed immunity in exchange for the public awareness benefits of a health warning label was not a popular trade-off, even among staunch labelling advocates. Rep. John Conyers, D-Mich., entered last year's debate as a leading congressional supporter of the labelling concept. By the time the labelling requirement passed, however, Conyers was one of a handful of members of Congress vocally opposed to the measure. The reason for his shift, he explained, was that he was not prepared to provide blanket immunity to alcohol manufacturers without their even having to identify by name and severity all of the risks associated with alcohol consumption. An early labelling proposal called for rotating warning labels covering five areas: drinking during pregnancy; drinking and driving; drinking in combination with other drugs; drinking and increased risk of hypertension, liver disease, and cancer; and alcohol as a potentially addictive drug. But as eventually passed, the measure warns only of drinking during pregnancy and drinking and driving and it only suggests the possibility of unnamed "health problems." Conyers found the watered-down version insupportable. Though industry representatives are publicly silent on the liability issue, their behind-the-scenes conduct in the legislative process suggests that alcohol manufacturers knew what they wanted and were working to get it. Last August, the Senate Commerce Committee convened hearings on warning labels, and the industry refused to participate. Senator Al Gore, D- Tenn., said, "I say to the industry: if you want this bill coming down the pike, . . . just keep on stonewalling and dodging and ducking." Although Committee members expressed outrage at the alcohol industry's arrogance, several key Senators rewarded the industry tactic by arranging private meetings with alcohol producers. It was one of these private meetings that produced the controversial final version of the warning label. From that point on, the measure was not publicly debated again; the Committee attached it to the amendment-laden antidrug bill and it glided virtually unnoticed through the House and Senate. A spokesperson for Congressman Conyers described the industry's back-room influence over the process as "sleazy," although the lobbying clout exhibited by alcohol producers surprised few on Capitol Hill. A recent CSPI study found that the industry gives more than $1 million a year to members of Congress in campaign contributions and honoraria. Also working in the industry's favor at the Senate committee stage was the fact that Wendell Ford, D-Ky., Pete Wilson, R-CA, and Robert Kasten, Jr., R-WI, representing key alcohol producing states, all sat on the Commerce Committee through the labelling debate. Some labelling advocates fear that the industry's formidable political influence may now be at work in the final stage of the labelling battle: establishing regulations to govern how the labels are actually to appear on beverage containers. Last year's labelling law gave the Bureau of Alcohol, Tobacco and Firearms (BATF) authority to create guidelines on such matters as script size and label placement. The agency has not yet issued permanent rules, but a set of proposed standards floated for public comment in February immediately drew fire from labelling supporters. The suggested regulations would permit producers to place the warning label anywhere on the container, and establish a minimum type size of only 2 mm. Pat Taylor charges that the proposal "serves the interests of the booze industry, not consumers." Even Strom Thurmond warned in an official statement in response to BATF's temporary rules that he thought the final regulations must require a more prominent label. "The intention of my legislation was to better educate consumers about the consequences of drinking," he said. "If the final regulations allow industry members to place minuscule labels in difficult to find places on the containers, the purpose of the law has been defeated. I would hope that the final regulations call for easily readable labels to be conspicuously displayed. Anything less would circumvent my intention in pursuing passage of this vital legislation." The period of public comment on the temporary rules ended in April and there is still no word on what the final warning specifications will be. In the meantime, public health activists are preparing to continue their battle with the alcohol industry on other fronts. Attorney Barry Epstein is readying two more fetal alcohol syndrome liability cases against alcohol manufacturers, both scheduled to come up for trial in Washington State within the next several months. Despite the loss in the Thorp case, Epstein believes that the legal issues are so complex that the door remains open for a successful action. "It's all such a morass," he says. "One of the fundamentals in all of this is just what alcoholism does to people, and how devastating an illness it really is . . . It's such a complex problem, alcoholism in this country. It's a sacred cow. People don't want you to fool with their alcohol. You run into all these kinds of issues." The NCA's Galbraith says her next fight will be to extend health warnings into print advertising for alcohol products. The fact that it took 20 years to earn partial victory in the container labelling campaign, however, has instilled a strong sense of realism. "It's taken this long to get this simple label and with warning labels on booze, we just had to deal with the alcohol beverage industry," she says. "With advertising, you have to deal with the advertising industry, too. How long do you think it will take to get this one through?"