Oct 1, 2007 12:00 PM, By Ronald R. Urbach, Esq.

Be careful: You too could become the victim of an overzealous public official trying to protect children from marketers, warns attorney Ronald R. Urbach.

When the magic words are uttered, “We need to take action to protect our children,” what is the reaction of any law-abiding person of high moral character?

You would probably think the correct answer is: “Of course. Let's get those guys.” But when a government official makes such a statement, I strongly suggest that you slow down and think before you make that call to action.

Promo and other publications reported the recent action by 29 state attorneys general who sent collectively a letter to the Alcohol and Tobacco Tax and Trade Bureau, the federal regulatory agency that controls alcoholic beverages.

The letter demanded that action be taken against the marketers behind several new malt beverage products because they contain caffeine. Like all new alcoholic beverage products, the labels and ingredients had to be approved by the relevant federal government agency before the products could be sold. Since that was certainly the case in this instance, what were the states complaining about?

The states claimed that there was something inherently nefarious about these beverages. They also questioned how they were packaged, promoted, marketed and advertised.

The state officials believe the products were designed to appeal to people under the legal drinking age. Based on this conclusion, the states determined that they should take action, all under the guise of “protecting our children.”

The state attorneys general are sworn to protect the public and enforce the law. But a fundamental fact of politics is that they also need to be elected and at some point re-elected. The position of attorney general in many states is a very high profile position and one that is often viewed as a stepping stone to higher political office.

A good example, Eliot Spitzer, the current governor of New York, was the state's former attorney general. In that job, he prosecuted several cases that received much media attention in a number of key areas, including consumer protection and advertising practice cases. These actions generated tremendous consumer appeal. He was easily elected to governor in part due to the strength of his record in his last position.

No one could possibly think that a legitimate alcoholic beverage company would develop and market a product with the purpose of appealing to those under the legal drinking age. As we all know, alcoholic beverage products can only be legally sold to those persons who are of legal drinking age. No company would take such action to intentionally flout the law in this manner, especially in this current environment. Any company taking such action would have much too much to lose.

Though I strongly disagree with the action taken by these 29 states, this article is less about who is right and who is wrong. It is more about what I believe is a major problem that affects every one of us in the promotion, marketing and advertising industries.

It is the action by certain government officials to substitute rhetoric and worn excuses for intelligent analysis and fact. A key excuse that oftentimes has been used is the need to protect our children.

You might ask, what's the fuss all about? But you, your company, your agency or your industry, could be next. You could become a target of a government claim to “protect our children.” When that happens, who will come to your defense? Who will ask, “What are the real facts?” We all should.

The problem with the “protect our children” position is that it is oftentimes used as a sword to squelch intelligent discourse. People become afraid of being accused of not wanting to protect our children? That should never be. That would lead us down a pathway that runs counter to both our historical traditions and the fundamental tenet of consumer protection in this country.

Consumers should be free to make informed choices about products or services as long as they are not being deceived or misled. That is what the government should focus on.

Reason must prevail over emotion.

Ronald R. Urbach is co-chair of the Advertising, Marketing and Promotions Group and head of the Intellectual Property; Entertainment, Publishing and Media; and New Media Groups of Davis & Gilbert LLP. He can be reached at rurbach@dglaw.com.

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