The Fountain of Youth?

This week, Dr. Claudia Kawas – a neurologist from the University of California – gave the world a little insight into work she’s been conducting for the better part of two decades.  The exercise (aptly named the “90+ Study”) involves tracking the daily habits of roughly 1,700 nonagenarians and trying to tease out from the data any insights into how those activities may impact the study participants’ longevity.  In other words, Dr. Kawas is looking what kinds of behaviors appear to correlate with living longer.

And this is where things get interesting.  According to Dr. Kawas’ work, individuals in the study who drank 1-2 glasses of wine or beer per day were 18% less likely to experience a premature death.  That’s good news for those of us who enjoy a glass now and again.  [Note: Maybe even better news for those of us who struggle to lose those last few pounds – being slightly overweight, but not obese, seemed to correlate with being 3% less likely to die prematurely.]

So with that extremely good news, why not advertise that people who consume a couple servings of your hooch every day are more likely to live to be 90?  Can you do that?  Maybe you could even put it on your label?  Since you know that not all the folks in Dr. Kawas’ study were drinking your product – you’d even be willing to tone down the statement to something about alcohol generally.  That would work, right?

Probably not.

From a federal standpoint, when you’re thinking about what is (and therefore what is not) a prohibited practice in terms of the advertising of alcohol, the first place to look is 27 CFR 5.65.  And once you’re there, scroll down to subsection (d) – which addresses the treatment of health-related statements, specific health claims, and health-related directional statements in the context of advertising distilled spirits.

Generally speaking, these rules prohibit making any statement (or, with respect to health-related directional statements, referring consumers to any statement) which is untrue or which tends to create a misleading impression in the minds of consumers with respect to the effects of alcohol consumption on health.

The regulations require the TTB to consider these statements on a case-by-case basis and give the TTB broad authority to deny the inclusion of these statements, require that they be modified, or require that additional information be disclosed so as to keep them from being misleading.  If we’re talking about a specific health claim – like, for example, a claim that “consuming 1-2 servings of alcohol per day correlates to being 18% less likely to die prematurely” – then the TTB might let you get by with making the statement if by pointing to Dr. Kawas’ study you can demonstrate that your claim is “adequately substantiated by scientific or medical evidence.”

But you won’t simply be able to point to Dr. Kawas’ hard work and tell the TTB to sign off on your claim, unfortunately.  As the regulations make clear, for your statement not to be deemed misleading, you will also need to disclose the health risks associated with both moderate and heavier levels of alcohol consumption and outline the categories of individuals for whom any levels of alcohol consumption may cause greater risks.

In other words, if you’re going to sing the praises of your hooch from a health standpoint, the TTB isn’t going to let you give people the good news and ignore the bad.

Which means that if you’re going to mention Dr. Kawas’ study, you’ll also need to mention another study in the news this week.  According to a study published yesterday in Lancet Public Health (discussed here) researchers recently found alcohol-use disorders in 16.5% of men and 4% of women with early onset dementia.  According to the study authors – that means that if you’ve got an alcohol-use disorder (i.e., you’re an extremely heavy drinker), you’re roughly twice as likely to develop dementia.

As a practical matter, this means that people who drink in an effort to forget their worries are apparently heading in the right direction.  It also means that their efforts are perhaps too successful – dementia is undoubtedly not their objective.

But back to the point at hand – the point is that if you’re going to make a positive claim with respect to the health benefits of your product, the TTB is going to require you to list out all the potential negative effects of your product on consumers’ health as well.

My best guess is that you’re not going to want to do that.

My second best guess is that even if you did want to do that, you’d need a significantly bigger label to list them all out.