SUPREME COURT OF THE UNITED STATES

No. 93-1631 (574 US 476)

ROBERT E. RUBIN, SECRETARY OF THE TREASURY,

PETITIONER v. COORS BREWING COMPANY
on writ of certiorari to the united states court of appeals for the
tenth circuit
[April 19, 1995]
Justice Thomas delivered the opinion of the Court.
Respondent brews beer. In 1987, respondent applied to the Bureau of
Alcohol, Tobacco and Firearms (BATF), an agency of the Department of the
Treasury, for approval of proposed labels and advertisements that disclosed
the alcohol content of its beer. BATF rejected the application on the ground
that the Federal Alcohol Administration Act (FAAA or Act), 49 Stat. 977, 27
U.S.C. § 201 et seq., prohibited disclosure of the alcohol content of beer on
labels or in advertising. Respondent then filed suit in the District Court for
the District of Colorado seeking a declaratory judgment that the relevant
provisions of the Act violated the First Amendment; respondent also sought
injunctive relief barring enforcement of these provisions. The Government
took the position that the ban was necessary to suppress the threat of
"strength wars" among brewers, who, without the regulation, would seek to
compete in the marketplace based on the potency of their beer.
The District Court granted the relief sought, but a panel of the Court of
Appeals for the Tenth Circuit reversed and remanded. Adolph Coors
Co. v. Brady, 944 F. 2d 1543 (1991). Applying the framework set out
in Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n of N. Y., 447
U.S. 557 (1980), the Court of Appeals found that the Government's interest
in suppressing alcoholic "strength wars" was "substantial." Brady, supra, at
1547-1549. It further held, however, that the record provided insufficient
evidence to determine whether the FAAA's ban on disclosure "directly
advanced" that interest. Id., at 1549-1551. The court remanded for further
proceedings to ascertain whether a " `reasonable fit' " existed between the
ban and the goal of avoiding strength wars. Id., at 1554.
After further factfinding, the District Court upheld the ban on the disclosure
of alcohol content in advertising but invalidated the ban as it applied to
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labels. Although the Government asked the Tenth Circuit to review the
invalidation of the labeling ban, respondent did not appeal the court's
decision sustaining the advertising ban. On the case's second appeal, the
Court of Appeals affirmed the District Court. Adolph Coors Co. v. Bentsen, 2
F. 3d 355 (1993). Following our recent decision in Edenfield v. Fane, 507 U.
S. ___ (1993), the Tenth Circuit asked whether the Government had shown
that the " `challenged regulation advances [the government's] interests in a
direct and material way.' " 2 F. 3d, at 357 (quoting Edenfield, supra, at ___
(slip op., at 5-6). After reviewing the record, the Court of Appeals concluded
that the Government had failed to demonstrate that the prohibition in any
way prevented strength wars. The court found that there was no evidence of
any relationship between the publication of factual information regarding
alcohol content and competition on the basis of such content. 2 F. 3d, at
358-359.
We granted certiorari, 512 U. S. ___ (1994), to review the Tenth Circuit's
decision that §205(e)(2) violates the First Amendment. We conclude that the
ban infringes respondent's freedom of speech, and we therefore affirm.
Soon after the ratification of the Twenty first Amendment, which repealed
the Eighteenth Amendment and ended the Nation's experiment with
Prohibition, Congress enacted the FAAA. The statute establishes national
rules governing the distribution, production, and importation of alcohol and
established a Federal Alcohol Administration to implement these rules.
Section 5(e)(2) of the Act prohibits any producer, importer, wholesaler, or
bottler of alcoholic beverages from selling, shipping, or delivering in
interstate or foreign commerce any malt beverages, distilled spirits, or wines
in bottles
"unless such products are bottled, packaged, and labeled in conformity
with such regulations, to be prescribed by the Secretary of the Treasury,
with respect to packaging, marking, branding, and labeling and size and
fill of container . . . as will provide the consumer with adequate
information as to the identity and quality of the products, the alcoholic
content thereof (except that statements of, or statements likely to be
considered as statements of, alcoholic content of malt beverages are
prohibited unless required by State law and except that, in case of
wines, statements of alcoholic content shall be required only for wines
containing more than 14 percentum of alcohol by volume), the net
contents of the package, and the manufacturer or bottler or importer of
the product." 27 U.S.C. § 205(e)(2) (emphasis added).
The Act defines " `malt beverage[s]' " in such a way as to include all beers
and ales. §211(a)(7).

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Implementing regulations promulgated by BATF (under delegation of
authority from the Secretary of the Treasury) prohibit the disclosure of
alcohol content on beer labels. 27 CFR § 7.26(a) (1994). [n.1] In addition to
prohibiting numerical indications of alcohol content, the labeling regulations
proscribe descriptive terms that suggest high content, such as "strong," "full
strength," "extra strength," "high test," "high proof," "pre war strength," and
"full oldtime alcoholic strength." §7.29(f). The prohibitions do not preclude
labels from identifying a beer as "low alcohol," "reduced alcohol," "non
alcoholic," or "alcohol free." Ibid.; see also §7.26(b)-(d). By statute and by
regulation, the labeling ban must give way if state law requires disclosure of
alcohol content.
Both parties agree that the information on beer labels constitutes
commercial speech. Though we once took the position that the First
Amendment does not protect commercial speech, see Valentine v.
Chrestensen, 316 U.S. 52 (1942), we repudiated that position in Virginia
State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S.
748 (1976). There we noted that the free flow of commercial information is
"indispensable to the proper allocation of resources in a free enterprise
system" because it informs the numerous private decisions that drive the
system. Id., at 765. Indeed, we observed that a "particular consumer's
interest in the free flow of commercial information . . . may be as keen, if
not keener by far, than his interest in the day's most urgent political
debate." Id., at 763.
Still, Virginia Board of Pharmacy suggested that certain types of restrictions
might be tolerated in the commercial speech area because of the nature of
such speech. See id., at 771-772, n. 24. In later decisions we gradually
articulated a test based on " `the "commonsense" distinction between
speech proposing a commercial transaction, which occurs in an area
traditionally subject to government regulation, and other varieties of
speech.' " Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n of N.
Y., 447 U.S. 557, 562 (1980) (quoting Ohralik v. Ohio State Bar Assn., 436
U.S. 447, 455-456 (1978)). Central Hudson identified several factors that
courts should consider in determining whether a regulation of commercial
speech survives First Amendment scrutiny:
"For commercial speech to come within [the First Amendment], it at
least must concern lawful activity and not be misleading. Next, we ask
whether the asserted governmental interest is substantial. If both
inquiries yield positive answers, we must determine whether the
regulation directly advances the governmental interest asserted, and
whether it is not more extensive than is necessary to serve that
interest." 447 U. S., at 566.
[n.2]
We now apply Central Hudson's test to §205(e)(2).

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Both the lower courts and the parties agree that respondent seeks to
disclose only truthful, verifiable, and nonmisleading factual information
about alcohol content on its beer labels. Thus, our analysis focuses on the
substantiality of the interest behind §205(e)(2) and on whether the labeling
ban bears an acceptable fit with the Government's goal. A careful
consideration of these factors indicates that §205(e)(2) violates the First
Amendment's protection of commercial speech.
The Government identifies two interests it considers sufficiently "substantial"
to justify §205(e)(2)'s labeling ban. First, the Government contends that
§205(e)(2) advances Congress' goal of curbing "strength wars" by beer
brewers who might seek to compete for customers on the basis of alcohol
content. According to the Government, the FAAA's restriction prevents a
particular type of beer drinker--one who selects a beverage because of its
high potency--from choosing beers solely for their alcohol content. In the
Government's view, restricting disclosure of information regarding a
particular product characteristic will decrease the extent to which consumers
will select the product on the basis of that characteristic.
Respondent counters that Congress actually intended the FAAA to achieve
the far different purpose of preventing brewers from making inaccurate
claims concerning alcohol content. According to respondent, when Congress
passed the FAAA in 1935, brewers did not have the technology to produce
beer with alcohol levels within predictable tolerances--a skill that modern
beer producers now possess. Further, respondent argues that the true policy
guiding federal alcohol regulation is not aimed at suppressing strength wars.
If such were the goal, the Government would not pursue the opposite policy
with respect to wines and distilled spirits. Although §205(e)(2) requires BATF
to promulgate regulations barring the disclosure of alcohol content on beer
labels, it also orders BATF to require the disclosure of alcohol content on the
labels of wines and spirits. See 27 CFR § 4.36 (1994) (wines); §5.37
(distilled spirits).
Rather than suppressing the free flow of factual information in the wine and
spirits markets, the Government seeks to control competition on the basis of
strength by monitoring distillers' promotions and marketing. The respondent
quite correctly notes that the general thrust of federal alcohol policy appears
to favor greater disclosure of information, rather than less. This also seems
to be the trend in federal regulation of other consumer products as well.
See, e.g., Nutrition Labeling and Education Act of 1990, Pub. L. 101-535,
104 Stat. 2353, as amended (requiring labels of food products sold in the
United States to display nutritional information).
Respondent offers a plausible reading of the purpose behind §205(e)(2), but
the prevention of misleading statements of alcohol content need not be the
exclusive government interest served by §205(e)(2). In Posadas de Puerto

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Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341 (1986), we
found that the Puerto Rico Legislature's interest in promoting the health,
safety, and welfare of its citizens by reducing their demand for gambling
provided a sufficiently "substantial" governmental interest to justify the
regulation of gambling advertising. So too the Government here has a
significant interest in protecting the health, safety, and welfare of its citizens
by preventing brewers from competing on the basis of alcohol strength,
which could lead to greater alcoholism and its attendant social costs. Both
panels of the Court of Appeals that heard this case concluded that the goal
of suppressing strength wars constituted a substantial interest, and we
cannot say that their conclusion is erroneous. We have no reason to think
that strength wars, if they were to occur, would not produce the type of
social harm that the Government hopes to prevent.
The Government attempts to bolster its position by arguing that the labeling
ban not only curbs strength wars, but also "facilitates" state efforts to
regulate alcohol under the Twenty first Amendment. The Solicitor General
directs us to United States v. Edge Broadcasting Co., 509 U. S. ___ (1993),
in which we upheld a federal law that prohibited lottery advertising by radio
stations located in States that did not operate lotteries. That case involved a
station located in North Carolina (a nonlottery state) that broadcast lottery
advertisements primarily into Virginia (a State with a lottery). We upheld the
statute against First Amendment challenge in part because it supported
North Carolina's antigambling policy without unduly interfering with States
that sponsored lotteries. Id., at ___ (slip op., at 12-15). In this case, the
Government claims that the interest behind §205(e)(2) mirrors that of the
statute in Edge Broadcasting because it prohibits disclosure of alcohol
content only in States that do not affirmatively require brewers to provide
that information. In the Government's view, this saves States that might
wish to ban such labels the trouble of enacting their own legislation, and it
discourages beer drinkers from crossing state lines to buy beer they believe
is stronger.
We conclude that the Government's interest in preserving state authority is
not sufficiently substantial to meet the requirements of Central Hudson.
Even if the Federal Government possessed the broad authority to facilitate
state powers, in this case the Government has offered nothing that suggests
that States are in need of federal assistance. States clearly possess ample
authority to ban the disclosure of alcohol content--subject, of course, to the
same First Amendment restrictions that apply to the Federal Government.
Unlike the situation in Edge Broadcasting, the policies of some States do not
prevent neighboring States from pursuing their own alcohol related policies
within their respective borders. One State's decision to permit brewers to
disclose alcohol content on beer labels will not preclude neighboring States

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from effectively banning such disclosure of that information within their
borders.
The remaining Central Hudson factors require that a valid restriction on
commercial speech directly advance the governmental interest and be no
more extensive than necessary to serve that interest. We have said that
"[t]he last two steps of the Central Hudson analysis basically involve a
consideration of the `fit' between the legislature's ends and the means
chosen to accomplish those ends." Posadas, supra, at 341. The Tenth Circuit
found that §205(e)(2) failed to advance the interest in suppressing strength
wars sufficiently to justify the ban. We agree.
Just two Terms ago, in Edenfield v. Fane, 507 U. S. ___ (1993), we had
occasion to explain the Central Hudson factor concerning whether the
regulation of commercial speech "directly advances the governmental
interest asserted." In Edenfield, we decided that the Government carries the
burden of showing that the challenged regulation advances the
Government's interest "in a direct and material way." Id., at ___ (slip op., at
5). That burden "is not satisfied by mere speculation and conjecture; rather,
a governmental body seeking to sustain a restriction on commercial speech
must demonstrate that the harms it recites are real and that its restriction
will in fact alleviate them to a material degree." Id., at ___ (slip op., at 9).
We cautioned that this requirement was critical; otherwise, "a State could
with ease restrict commercial speech in the service of other objectives that
could not themselves justify a burden on commercial expression." Ibid.
The Government attempts to meet its burden by pointing to current
developments in the consumer market. It claims that beer producers are
already competing and advertising on the basis of alcohol strength in the
"malt liquor" segment of the beer market. [n.3] The Government attempts to
show that this competition threatens to spread to the rest of the market by
directing our attention to respondent's motives in bringing this litigation.
Respondent allegedly suffers from consumer misperceptions that its beers
contain less alcohol than other brands. According to the Government, once
respondent gains relief from §205(e)(2), it will use its labels to overcome
this handicap.
Under the Government's theory, §205(e)(2) suppresses the threat of such
competition by preventing consumers from choosing beers on the basis of
alcohol content. It is assuredly a matter of "common sense," Brief for
Petitioner 27, that a restriction on the advertising of a product characteristic
will decrease the extent to which consumers select a product on the basis of
that trait. In addition to common sense, the Government urges us to turn to
history as a guide. According to the Government, at the time Congress
enacted the FAAA, the use of labels displaying alcohol content had helped
produce a strength war. Section 205(e)(2) allegedly relieved competitive

6
pressures to market beer on the basis of alcohol content, resulting over the
long term in beers with lower alcohol levels.
We conclude that §205(e)(2) cannot directly and materially advance its
asserted interest because of the overall irrationality of the Government's
regulatory scheme. While the laws governing labeling prohibit the disclosure
of alcohol content unless required by state law, federal regulations apply a
contrary policy to beer advertising. 27 U.S.C. § 205(f)(2); 27 CFR §
7.50 (1994). Like §205(e)(2), these restrictions prohibit statements of
alcohol content in advertising, but, unlike §205(e)(2), they apply only in
States that affirmatively prohibit such advertisements. As only 18 States at
best prohibit disclosure of content in advertisements, App. to Brief for
Respondent 1a-12a, brewers remain free to disclose alcohol content in
advertisements, but not on labels, in much of the country. The failure to
prohibit the disclosure of alcohol content in advertising, which would seem to
constitute a more influential weapon in any strength war than labels, makes
no rational sense if the government's true aim is to suppress strength wars.
Other provisions of the FAAA and its regulations similarly undermine
§205(e)(2)'s efforts to prevent strength wars. While §205(e)(2) bans the
disclosure of alcohol content on beer labels, it allows the exact opposite in
the case of wines and spirits. Thus, distilled spirits may contain statements
of alcohol content, 27 CFR § 5.37 (1994), and such disclosures are required
for wines with more than 14 percent alcohol, 27 CFR § 4.36 (1994). If
combating strength wars were the goal, we would assume that Congress
would regulate disclosure of alcohol content for the strongest beverages as
well as for the weakest ones. Further, the Government permits brewers to
signal high alcohol content through use of the term "malt liquor." Although
the Secretary has proscribed the use of various colorful terms suggesting
high alcohol levels, 27 CFR § 7.29(f) (1994), manufacturers still can
distinguish a class of stronger malt beverages by identifying them as malt
liquors. One would think that if the Government sought to suppress strength
wars by prohibiting numerical disclosures of alcohol content, it also would
preclude brewers from indicating higher alcohol beverages by using
descriptive terms.
While we are mindful that respondent only appealed the constitutionality of
§205(e)(2), these exemptions and inconsistencies bring into question the
purpose of the labelling ban. To be sure, the Government's interest in
combating strength wars remains a valid goal. But the irrationality of this
unique and puzzling regulatory framework ensures that the labeling ban will
fail to achieve that end. There is little chance that §205(e)(2) can directly
and materially advance its aim, while other provisions of the same act
directly undermine and counteract its effects.

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This conclusion explains the findings of the courts below. Both the District
Court and the Court of Appeals found that the Government had failed to
present any credible evidence showing that the disclosure of alcohol content
would promote strength wars. In the District Court's words, "none of the
witnesses, none of the depositions that I have read, no credible evidence
that I have heard, lead[s] me to believe that giving alcoholic content on
labels will in any way promote . . . strength wars." App. to Pet. for Cert. A-
38. See also Bentsen, 2 F. 3d, at 359. Indeed, the District Court concluded
that "[p]rohibiting the alcoholic content disclosure of malt beverages on
labels has little, if anything, to do with the type of advertising that promotes
strength wars." App. to Pet. for Cert. A-36. [n.4] As the FAAA's exceptions
and regulations would have counteracted any effect the labeling ban had
exerted, it is not surprising that the lower courts did not find any evidence
that §205(e)(2) had suppressed strength wars.
The Government's brief submits anecdotal evidence and educated guesses to
suggest that competition on the basis of alcohol content is occurring today
and that §205(e)(2)'s ban has constrained strength wars that otherwise
would burst out of control. These various tidbits, however, cannot overcome
the irrationality of the regulatory scheme and the weight of the record. The
Government did not offer any convincing evidence that the labeling ban has
inhibited strength wars. Indeed, it could not, in light of the effect of the
FAAA's other provisions. The absence of strength wars over the past six
decades may have resulted from any number of factors.
Nor do we think that respondent's litigating positions can be used against it
as proof that the Government's regulation is necessary. That respondent
wishes to disseminate factual information concerning alcohol content does
not demonstrate that it intends to compete on the basis of alcohol content.
Brewers may have many different reasons--only one of which might be a
desire to wage a strength war--why they wish to disclose the potency of
their beverages.
Even if §205(e)(2) did meet the Edenfield standard, it would still not
survive First Amendment scrutiny because the Government's regulation of
speech is not sufficiently tailored to its goal. The Government argues that a
sufficient "fit" exists here because the labeling ban applies to only one
product characteristic and because the ban does not prohibit all disclosures
of alcohol content--it applies only to those involving labeling and advertising.
In response, respondent suggests several alternatives, such as directly
limiting the alcohol content of beers, prohibiting marketing efforts
emphasizing high alcohol strength (which is apparently the policy in some
other Western nations), or limiting the labeling ban only to malt liquors,
which is the segment of the market that allegedly is threatened with a
strength war. We agree that the availability of these options, all of which

8
could advance the Government's asserted interest in a manner less intrusive
to respondent's First Amendment rights, indicates that §205(e)(2) is more
extensive than necessary.
In sum, although the Government may have a substantial interest in
suppressing strength wars in the beer market, the FAAA's countervailing
provisions prevent §205(e)(2) from furthering that purpose in a direct and
material fashion. The FAAA's defects are further highlighted by the
availability of alternatives that would prove less intrusive to the First
Amendment's protections for commercial speech. Because we find that
§205(e)(2) fails the Central Hudson test, we affirm the decision of the court
below.
It is so ordered.

Notes
1 BATF has suspended §7.26 to comply with the District Court's order
enjoining the enforcement of that provision. 58 Fed. Reg. 21228 (1993).
Pending the final disposition of this case, interim regulations permit the
disclosure of alcohol content on beer labels. 27 CFR § 7.71 (1994).
2 The Government argues that Central Hudson imposes too strict a standard
for reviewing §205(e)(2), and urges us to adopt instead a far more
deferential approach to restrictions on commercial speech concerning
alcohol. Relying on United States v. Edge Broadcasting Co., 509 U. S. ___
(1993), and Posadas de Puerto Rico Associates v. Tourism Co. of Puerto
Rico, 478 U.S. 328 (1986), the Government suggests that legislatures have
broader latitude to regulate speech that promotes socially harmful activities,
such as alcohol consumption, than they have to regulate other types of
speech. Although Edge Broadcasting and Posadas involved the advertising of
gambling activities, the Government argues that we also have applied this
principle to speech concerning alcohol. See California v. LaRue, 409 U.S.
109, 138 (1972) (holding that States may ban nude dancing in bars and
nightclubs that serve liquor).
Neither Edge Broadcasting nor Posadas compels us to craft an exception to
the Central Hudson standard, for in both of those cases we applied
the Central Hudson analysis. Indeed, Edge Broadcasting specifically avoided
reaching the argument the Government makes here because the Court
found that the regulation in question passed muster under Central Hudson.
509 U. S., at ___ (slip op., at 7). To be sure, Posadas did state that the
Puerto Rican government could ban promotional advertising of casino

9
gambling because it could have prohibited gambling altogether. 478 U. S., at
346. But the Court reached this argument only after it already had found
that the state regulation survived the Central Hudson test. See id., at 340-
344. The Court raised the Government's point in response to an alternative
claim that Puerto Rico's regulation was inconsistent with Carey v. Population
Services Int'l, 431 U.S. 678 (1977), and Bigelow v. Virginia, 421 U.S.
809 (1975). Posadas, supra, at 345-346.
Nor does LaRue support the Government's position. LaRue did not involve
commercial speech about alcohol, but instead concerned the regulation of
nude dancing in places where alcohol was served. 409 U. S., at 114.
3 " `Malt liquor' is the term used to designate those malt beverages with the
highest alcohol content . . . . Malt liquors represent approximately three
percent of the malt beverage market." Adolph Coors Co. v. Bentsen, 2 F. 3d
355, 358, n. 4 (CA10 1993).
4 Not only was there little evidence that American brewers intend to increase
alcohol content, but the lower courts also found that "in the United States . .
. the vast majority of consumers . . . value taste and lower calories--both of
which are adversely affected by increased alcohol strength." Bentsen,
supra, at 359; accord, App. to Pet. for Cert. A-37.

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