Wednesday, August 20, 2014

The Rule Against Drinking on TV

Did you know that little Doogie Howser, MD is old enough to drink? Well, of course, it's been many years since that sitcom first aired, back in September of 1989, and many years since it last went off the air, over two decades ago, in July of 1993. Since then, the star of the show, Neil Patrick Harris, has gone on to bigger and better things, and emerged as a major comedic talent.

But, it seems, he's not too big to shill out for the advertising industry, and in particular for beer commercials.  Perhaps you've seen his recent starring role as a pitchman for Heineken Light beer?

Hey, there's no question that beer commercials have a long history of being some of the most amusing forms of advertising you can find on American television. But that doesn't change the fact that the product they're selling, alcoholic beverages, is associated with negative effects that are far from funny or entertaining. 

And as you may know, back in 1987 I co-authored a research report based on an analysis of the myths and cultural meanings of beer commercials: Myths, Men & Beer: An Analysis of Beer Commercials on Broadcast Television, 1987, by Neil Postman, Christine Nystrom, Lance Strate, Charles Weingartner. You can download a scanned PDF of the publication from ERIC, just click here.  I'm not sure exactly how many print copies were distributed and sold by the research sponsor, the American Automobile Association Foundation for Traffic Safety, but I know it numbers in the tens of thousands, at least. I also published several articles and chapters on the subject as a follow-up, one of the lesser known ones can be found online here.

Anyway, getting back to this particular commercial, let me put aside the way that the ad associates beer with a disregard for rules, and how that relates to the American cultural myth of masculinity, with rules seen as a challenge to be overcome rather than a structure to honor and work within, and how the romantic notion of being a rule-breaker may be a staple of hero narratives, but is particularly problematic when it comes to concerns such as underage drinking, and drinking and driving. Instead, I want to focus on the fact that this ad brings up the question of why is it that you never see anyone actually drinking beer in television commercials? The ad seems to suggest that it is due to regulations, which implies federal legislation passed by Congress, or policy adopted by the Federal Communications Commission or the Federal Trade Commission. Many people out there seem to believe this is the case, and see it as another case of unwarranted and unwanted government intrusion on the private sector.

And they're wrong! The government has nothing to do with it, neither the executive or legislative branches. As it turns out, the rule originates with the broadcasting industry. Now, let me note that this question was brought to my attention by Jon Greenberg, a staff writer for PunditFact, which according to their website,

is a project of the Tampa Bay Times and the Poynter Institute, dedicated to checking the accuracy of claims by pundits, columnists, bloggers, political analysts, the hosts and guests of talk shows, and other members of the media.

We define a pundit as someone who offers analysis or opinions on the news, particularly politics and public policy. One can engage in punditry by writing, blogging or appearing on radio or TV. A pundit is not an elected official, not a declared candidate nor anyone in an official capacity with a political party, campaign or government.

PunditFact is funded in part by $625,000 in grants over two years from the Ford Foundation and the Democracy Fund. Seed money for the project was provided by craigconnects.

So, anyway, I was one of many sources that Jon contacted to check up on the claim made in the beer ad, which was evaluated as being "mostly true" (meaning not entirely): A "regulatory thing" means you can’t show someone drinking beer on camera.  You can click on the link to see the article in its entirety (no, I'm not quoted in it, but it's still worth a look). It begins with a discussion of the Heineken ad, and then poses the question:

But we wondered about the director’s claim that a "regulatory thing" stops people from drinking beer in commercials. We’ve seen plenty of beer commercials and just always assumed that someone was drinking at some point.

The fact is, however, ad makers successfully are getting us to see more than is on screen.

In case you were wondering, it’s not the long arm of government that’s stopping people from a sip of sudsy brew. A press officer at the Federal Communications Commission, the body in charge of decency and other rules for broadcasters, said FCC rules are silent on drinking on camera.

"Congress has not enacted any law prohibiting broadcast advertising of any kind of alcoholic beverage, and the FCC does not have a rule or policy regulating such advertisements," she said, citing the agency’s website.

If there’s an iron fist, it belongs to the broadcasters.

Tara Rush, senior director of corporate communications at Heineken USA, said the rules come from TV networks.

"This is a regulation with the actual TV networks," Rush said. "It’s a long-standing rule."

The broadcasters’ trade group, the National Association of Broadcasters, has no policy itself, but a spokesman sent us articles that describe how each network is free to set its own standards and, as it stands, when it comes to beer, they frown on public displays of ingestion.

The Heineken ad alludes to this. Near the end, the director talks about network execs getting in a room to agree on a set of rules.

Now, speaking of the NAB, what I did find in response to Jon's query was an article entitled Ad of the Day: Neil Patrick Harris Doesn't Get Why He Can't Drink Heineken Light on TV But here's the explanation, if you're interested, by David Griner, which appeared in Adweek magazine. And Griner provides a somewhat different explanation of the NAB's role in the matter:

While it's not really explained in the ad, there's no law keeping Harris—or anyone else—from drinking a beer on camera. The United States government doesn't actually limit alcohol marketing at all, or as the FCC notes, "Congress has not enacted any law prohibiting broadcast advertising of any kind of alcoholic beverage, and the FCC does not have a rule or policy regulating such advertisements."

The brewing industry's Beer Institute has its own voluntary guidelines, and they're generally OK with showing beer drinking, too: "Although beer advertising and marketing materials may show beer being consumed (where permitted by media standards), advertising and marketing materials should not depict situations where beer is being consumed rapidly, excessively, involuntarily, as part of a drinking game, or as a result of a dare."

However, several broadcast networks continue to stick to a long-expired portion of the Television Code that prohibited showing alcohol being consumed. (Thus the ad's reference to "network execs in a room somewhere.")

Also, Canada has a bevy of beverage restrictions, including a rule against showing "scenes in which any such product is consumed, or that give the impression, visually or in sound, that it is being or has been consumed." As you can imagine, other countries have their own rules, too, making a beer ad with global reach a truly hamstrung affair.

So in short, yeah, it's complicated. And it's not too likely to change anytime soon.

So, there is a historical connection to the NAB, and specifically to its Code of Practices for Television Broadcasters, one that continues to influence industry policy. Unfortunately, the link provided by the Adweek article is to a Wikipedia entry that does not specifically reference the policy on showing people consuming alcohol on camera, and I was not able to find a copy of the Code itself through a cursory search online. But I do find Griner's explanation to be reasonable and persuasive, and kudos as well to Canada for its contribution towards keeping the advertisers in check. 

I should add that Griner also suggests that, "we can probably expect a similar gag to come around every few decades," reminding us that back in the 80s a similar commercial aired, featuring Paul Hogan, aka Crocodile Dundee, hawking Foster's:

Returning to the PunditFact piece, here's the response from the beer industry's spokesperson: 

A spokeswoman for The Beer Institute, the voice of brewers and distributors, told us their members are loath to take chances with network policy.

"If you’re putting an ad together, you will be as conservative as possible so you know it will get past all the networks," said Megan Kirkpatrick, director of communications at the Institute.

Kirkpatrick said the brewers have no desire to stir things up and risk stirring a cry for a new law.

"The fact that it is self-regulated now, that’s not something brewers would want to put in jeopardy," Kirkpatrick said. "It’s the way they have operated for decades. You show a lot of people enjoying a football game or enjoying a baseball game but you don’t show any consumption. I don't think you’re going to see that change."


Rush left us with this tantalizing thought about the long-standing rule.

"Some networks are now beginning to change it," Rush said.

Note that Kirkpatrick's assurances are not backed up by the official guidelines of the Beer Institute, as noted in the Adweek article. And while the PunditFact piece ends on a lighthearted note—"We doubt Heineken is hoping for a quick shift. If commercials start showing people sipping away, that Heineken ad will be about as enticing as, well, old beer."—based on past history I think we can assume that the beer industry would love to see the broadcasting industry's policy altered, and eradicated. 

And maybe you're saying, what's the big deal, anyway? My response is that alcohol is a special kind of product, which is why the United States Department of Justice has a special Bureau of Alcohol, Tobacco, and Firearms, now the Bureau of Alcohol, Tobacco, Firearms and Explosives. There are laws regulating drinking age and prohibiting drunk driving. We expect individuals to refrain from drinking while on the job in most occupations, and in a variety of other situations that require a measure of seriousness and decorum, not to mention concentration and coordination.

And we impose few limits on communication in the United States, in keeping with our First Amendment, but we do impose some on commercial speech, such as truth in advertising, and the ban on tobacco commercials. There are very few limits imposed on alcohol advertising, however, too few in my opinion. This isn't about bringing back Prohibition, it's simply about asking for a reasonable amount of restraint. In holding to this one truly modest rule that says you can't show someone drinking on camera, broadcasters are acknowledging the fact that there is a significant difference between alcohol and toothpaste, between alcohol and smart phones, between alcohol and bottled water. I for one hope that our broadcasters will be able to not only hold their liquor, but also hold the line.

And I don't know about Neil Patrick Harris, but I am pretty confident that a certain Doogie Howser, MD, would agree...

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