Will Lawyers Drive the Move Towards US Neo-Prohibitionism?

US campaigners are beginning to talk about litigation against the alcohol industry. Robert Joseph considers some worrying legal precedents.

Reading time: 6m

Lawyer holding x-ray and bottle of wine (Image: midjourney AI)
Lawyer holding x-ray and bottle of wine (Image: midjourney AI)

At the recent United States Alcohol Policy Alliance biannual conference in Washington DC, among the 34 sessions were ones entitled Big Alcohol: How Do We Fight Back? Alcohol Labeling Reform in the United States and Shaping Narratives, Transforming Realities: Rethinking Media’s Role in Addressing Excessive Alcohol Use

However, it was the title of one called Can A Litigation Strategy Mitigate Harm?, co-led by 49-year-old podcaster, ‘attorney, operator, investor, and advisor to start-ups’ Cecily Mak, that may be of greatest interest and possibly concern to the wine industry. Ms Mak, as she describes on her Substack and podcasts, has recently been operated on for breast cancer and, while she does not directly attribute her own diagnosis to the alcohol she has consumed, says that, had she been aware of the link between cancer and alcohol, she might well have stopped drinking it. Seventy percent of Americans, Ms Mak claims, are unaware of the carcinogenic nature of alcohol.

It is worth bearing this credible assertion in mind, alongside the recent WHO statement that no level of consumption is safe, the adoption of that statement by Canada’s Centre on Substance Use and Addiction, and the possibility that the US federal authorities will soon take a similar stance.

Before considering these implications, it is instructive to consider previous legal precedents in the US.

Raising the minimum drinking age

On July 17, 1984, President Ronald Reagan put his signature to legislation that would make it illegal for anyone aged under 21 to buy any alcohol anywhere in the US.

In theory, this is the kind of law-making that is the responsibility of individual states, but threats of the withdrawal of substantial federal funding ensured that they all fell into line with a rule that makes the US an outlier when compared to other developed nations. In most of the world — including the US's neighbours, Canada and Mexico — the minimum age is 18. The American limit is shared with a small number of nations such as Kazakhstan, Iraq and Cambodia. Young Americans can obtain a driving licence at the age of 16, five years before they are allowed to legally buy a can of beer.

Driving is relevant because the 21-year-old limit was introduced after pressure from MADD (Mothers Against Drunk Driving), a Texas-based group launched by Candace Lightner after her 13-year-old daughter was killed by an inebriated driver.

After winning this early battle, along with praise for the number of road deaths it has helped to prevent, MADD has gone on to use an annual budget of over $30m to campaign for lower legal alcohol limits for drivers, and to become involved in the prosecutions and sentencing of drunk drivers.

In 1985, Candace Lightner parted company from MADD saying that it had "become far more neo-Prohibitionist than I had ever wanted or envisioned... I started MADD to deal with the issue of drunk driving”.


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Stories to tell

MADD’s success as a campaigning organisation has been attributed to the fact that so many of its supporters have a story to tell about the impact alcohol has had on their lives. And these are stories with which it is hard to argue: people who drive cars after they have consumed too much alcohol kill and injure their fellow citizens.

In the US, no fewer than 125,000 cancer sufferers found lawyers who were prepared to take Bayer to court.

A similar, but less clear, success story has involved cancer and the chemical giant Bayer, which bought Monsanto and its weed-killer brand, Roundup. In 2015 the World Health Organisation International Agency for Research on Cancer (IARC) announced that glyphosate, the main ingredient in this product, was “probably carcinogenic to humans”. In November, that year, the European Food Safety Authority (EFSA) and German Health Authority BfR came to a different view, determining that glyphosate did not pose any health risk.

However, in the US, no fewer than 125,000 cancer sufferers found lawyers who were prepared to take the company to court. The jury in the first of these cases found that Roundup substantially contributed to DeWayne “Lee” Johnsons’ Non-Hodgkin lymphoma and awarded him damages of $289.25m, a sum subsequently reduced to $78m.

By 2020, Bayer had only lost three cases in court, but it had settled some 75% of the others at a total cost of $11bn. Since then, the fight has continued, with the company stating, in May 2024, that there are 54,000 cases still outstanding. In November 2023, a jury awarded three plaintiffs $1.65bn, though this was reduced by a judge in April of this year to $611m.

Failure to warn

When it comes to litigation, the standard claim in cases like the ones against Bayer is that the manufacturer failed to warn users of the danger of their product.

In December 2012, five prisoners in Idaho filed a $1bn lawsuit against Adolph Coors, American Brands, Anheuser-Busch, Brown-Forman, E&J Gallo, Miller Brewing Company, Pepsi-Cola and RJR Nabisco. They claimed that the crimes they had committed were related to their addiction to alcohol, and that these companies had all failed to provide adequate warnings of the addictive nature of their products.

The defendants’ response that the warnings are unnecessary because the addictive nature of alcohol is generally known, was countered by the plaintiff’s argument that some people have a natural predisposition that means that even one drink may lead to addiction.

Lost this time

The Idaho prisoners lost their case but, when seen in the context of the Bayer cases, their lawyers’ arguments seem relevant to the wine industry, especially if one could imagine them being used by middle-aged, middle-class cancer sufferers rather than alcoholic criminals.

Alcohol — or more specifically the acetaldehyde created by the liver when processing it — can be toxic, which, in turn, can cause various forms of cancer. In particular these include the pancreas, the liver, the large intestine and the breast. This association is much more robust than any carcinogenic risks associated with glyphosate. The only question is over how great a danger is associated with precisely how much alcohol. And whether this danger might vary from one individual to another.

Evidence that moderate consumption significantly increases risks of cancer has yet to be established.

The evidence that moderate consumption significantly increases the risks of cancer is contested and, given the range of other factors that may affect each moderate drinker, may be hard to establish without the kind of large-scale research that is unlikely to take place.

On the other hand, lawyers speaking on behalf of alcohol will face the challenge of its inherently addictive character and the specific difficulties some people may genuinely have in restricting themselves to a moderate regime.

In any case, in a litigious society like the US, it is not hard to imagine a MADD-style, Failure to Warn legal campaign that brings together the widespread lack of awareness of the link between alcohol and cancer, and the WHO no-alcohol-is-safe ruling, enjoying similar success to the ones mounted by the huge number of people who have taken Bayer to court.

Then there is Canada

It will be instructive to keep track of an ongoing class action in Canada where a firm of lawyers called Lambert Avocats is acting against the brewers Molson Coors, Labatt and Sleeman on behalf of a woman in her 60s who has had to undergo chemotherapy after developing a malignant breast tumour. Their argument is that when she started drinking at the age of 18 “she did not know the risks associated with alcohol use, nor the fact that alcohol could cause dependence” and that “during her drinking, [she] has always ignored the dangers of alcohol consumption, especially with regard to the risk of developing certain cancers, including breast cancer.”

Lambert Avocats could, like the Idaho criminals' lawyers, lose this case, but there's every chance that, as happened with Bayer, a plaintiff somewhere will win one like it. And when they do, again as happened with Bayer, there will be a mass of others that will follow in their wake.

Four decades after Ronald Reagan signed that bill, most Americans seem to take their  high minimum drinking age for granted. Sixty years earlier, they accepted Prohibition. Who can name the restrictions on alcohol they will have come to accept over the next few decades — especially when there's so much money to be made by the lawyers on the way to imposing them?

The United States Alcohol Policy Alliance, describes itself as a “nonprofit, nonpartisan organization leading the fight to change America's relationship with alcohol by translating alcohol policy research into public health practice, ensuring the absolute truth about the dangers of alcohol serves to inform public health decisions.”

For the background to a number or organisations like this, it is worth reading How Neo-Prohibitionists Came to Shape Alcohol Policy by Meininger’s contributor, Felicity Carter.


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