May 31, 2018

Cheers to Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable

Editor's Note:Thank you to Paige Davidson and Jessica Gandara for powerful research assistance and insights.

Abstract

Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market at the expense of independent craft beer and consumer choice, evolving commercial speech doctrine threatens to invalidate them due to a trend towards increased protections for commercial speech. Without these regulations, and many others like them, nothing would restrain global corporate brands from engaging in illegal pay-to-play conduct to regain lost market share and force independent craft beer from the shelves and tap handles.

Author

Daniel J. Croxall, Assistant Professor of Lawyering Skills, McGeorge School of Law; Director, Capital Lawyering Concentration.

Copyright 2018 by Daniel J. Croxall

Cite as: Daniel J. Croxall, Cheers to Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable, 113 Nw. U. L. Rev. Online 1 (2018), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1262&context=nulr_online.