"Does charging $3-$5 to get into a party where alcohol is available constitute the 'selling' of alcohol" under California law? That's the key question facing the California Supreme Court, in a case to be decided soon, reports the LA Times. A "yes" answer would extend social host liability in the state to minors who hold parties and charge a cover to pay for the alcohol. (Current California law bars any adult from "knowingly serving" minors, but this case could extend liability further to parents, and their minor children, even if the parents were unaware of the party.) Recall, different courts in different states have tackled similar issues in recent years, with differing results, as we have reported. Some have extended liability, without legislative action; some have not.

The case stems from a 2007 party held by a minor without parental permission. The minor charged uninvited guests $3-5 to buy additional alcohol. One of the minor's friends at the party had an altercation with one of the uninvited guests and got run over and killed. The friend's parents sued the minor host, claiming she did not fall under the social host exception to California liability law at the time, since she was "selling" alcohol via the cover charge. Both the trial court and the appeals court ruled in the host's favor, "because she did not intend to profit from the entrance fee but merely to defray the cost of the alcohol." The appeals court held that the California legislature didn't intend to "impose liability on social hosts and guests who contribute money to a common fund to purchase" alcohol beverages for a social occasion, reported the LA Times.

But at a December hearing, "some members of the state's highest court appeared ready to overturn the decision," the paper added. The host's attorneys continued to argue there was no "sale" of alcohol and that only a sale would impose liability upon "non-licensees." Under California law, they argue, "sale means a sale for commercial gain." They distinguished "sale" from "furnishing" alcohol and insist that the cover charge "did not transform [the Defendant] from social host to saleswoman." No "commercial gain," means no sale and therefore no liability for this (minor) social host under California law, they conclude.

The Plaintiffs argued that "Defendant's acts of 'furnishing' and 'selling' alcoholic beverages by way of an admission charge" to people she didn't know/invite for "access to alcohol that she exclusively provided" at a location where she didn't live, "demonstrates the type of event for 'commercial gain' the legislature specifically sought to prevent" when it amended California's social host law in the late 1980s. For support, they cite the "plain language" of the bill, "stated legislative intent" of the California business code, published opinions from the state AG and "interpretations and guidelines" of the state ABC. Therefore, the host "is not immune from civil liability" in this case, the Plaintiffs conclude. Ref 1

While the resolution of this case may extend social host liability in California and/or perhaps prove a precedent for further tweaks to the law, "some lawyers have predicted the…case might just encourage young imbibers to find new ways to collect money for alcohol, such as passing a hat," wrote the LA Times.  

Wide-ranging discussion with Diageo executive vice president and leader in shaping its alcohol policy Guy Smith and senior VP/Public Policy and Communication Jon Pageler picked up some themes from recent editions of INSIGHTS. Smith addressed the issue of why teen drinking rates (and drunk driving rates) have plummeted in the US while trends in the "4Ps" of product, place, price and promotion, in the eyes of public health advocates, have all gone in the "wrong" direction, towards looser or certainly not stricter control. "Over the last decade or more," Smith pointed out, "we've seen a coming together of law enforcement, education, parents, the industry as a whole, including beer, wine and spirits, and many stake holders in the policy world" to address these issues. (There are some "outliers" in alcohol policy/public health who haven't partaken, he acknowledged.)

Other key collaborators range from legislators to bartenders and store owners "being more attentive and more conscious" of their responsibilities. These collaborations and the progress made "prove you can have an impact." (Interestingly, the exact same point about the importance of collaborations - and why INSIGHTS should be covering more of them - was made by a veteran alcohol policy expert at AB InBev to us in an informal discussion several months ago.) In part as a result of these actions, "industry and the way alcohol are treated and perceived and accepted by society have changed," Smith points out. Alcohol, particularly spirits, is now more available on Sundays, spirits advertising has found its way to the airwaves, a broader selection of beverages can be found in ballparks, at NASCAR etc. "Society today has a much more progressive view" toward the product, Smith notes.

And none of this broader accessibility or more progressive attitude has led to an increase in alcohol-related crimes, drunk driving or teen drinking. Quite the contrary. One very specific data point Smith provided strongly supports this. While underage drinking declined steadily from 1995 through 2011, at least one measure of alcohol beverage industry advertising expenditures more than doubled during that period, to just below $1.8 billion annually, according to Nielsen data. (Measured ad spending actually dipped slightly from a higher peak in 2005-2006; that's when producers starting shifting more of their dollars to harder-to-track internet/social media.) Net-net: The "prophets of doom, those who thought the world will end if we let alcohol out of the brown bag," were wrong, said Smith.

He points to the emergence of designated drivers ("they didn't exist when we started"), responsibility ads (20% of Diageo's broadcast ads are a responsible drinking messages, but Smith credits the entire industry) and voluntary marketing codes as specific ways the industry has played a role in the collaborations. (Industry outliers who violate the codes are "very rare.") Pageler pulled these points together, noting "it's not just us that sees things this way" about the collaborations and the industry's actions. "It's clear that society sees a culture of cooperation" with law enforcement, legislators and others, so "there's a sense in society that drinking is okay as long as it's responsible, in moderation." That sense has become "so well established," he suggests, that we're seeing "greater access and liberalization," and, again, it's "all happened without the world coming to an end."

Smith and Pageler had interesting observations and comments on other topics. Here are some highlights.

• The general media remain far too accepting of public health claims/attacks on the industry. When Alcohol Justice and others make "outrageous" claims, "there's no questioning from the media."



• On distillers and serving facts labeling. "We're in lockstep" with CSPI, a sharp critic of the industry on many other matters, but which has significantly scaled back its attention to alcohol and targeted soft drinks more in recent years. "In today's world," said Smith, "you can't not tell people what's in the product." (Editor's note: There may be more coming on labeling and the distiller-brewer split on Serving Facts/"a drink is a drink," etc.)



• Diageo, among others, has long been supportive of alcohol screening and brief interventions, highlighted by CDC's Dr. Tom Friedman in January (see last issue). "What we saw [at that press conference] was encouraging," Pageler pointed out. "People were skeptical" when Diageo supported these programs nearly a decade ago with the New York Medical Society and the University of Chicago, said Smith, but "they've proven to be very effective."

Smith and Pageler also discussed with INSIGHTS current debates in UK over minimum price and the constant media attention to alcohol-related problems there. We hope to explore that issue in future editions. But Smith suggests why minimum price rarely comes up in the US. Public health advocates "immediately default to taxes to raise price. It's easier to sell as a 'sin tax.' But politicians now are not the same. They came out of the 60s, 70s and 80s…. They've heard about designated drivers" and such and "their perspective has changed, just like society's."

Finally, we discussed the possibility of broadening collaboration even further, to include some of those public policy advocates who generally choose not to engage with industry. (That choice can go in the other direction as well.) "We're getting more involved in constructive engagement," Smith responded. "We'll engage with anyone who agrees to talk. What we've found is that when you have dialogue, sometimes you find a way to get to" shared objectives "in ways that are not damaging to any of the parties." Diageo was an early supporter of lowering BAC limits to .08, Smith reminded which came out of a dialogue with MADD, with whom Diageo had previously had no contact. "It wasn't their fault. It was our fault." Smith didn't say it, but .08, and Diageo/DISCUS support of it, was fairly controversial at the time. Yet it has become broadly accepted. And the world didn't end.  

The big British Whitehall study followed over 5,000 men and 2,000 women age 44-69 for 10 years, assessing their cognitive performance in 3 separate years on 4 different tests. The base group was light to moderate drinkers: up to 1.5 drinks/day for men, less for women. Among men, those who drank 2.5 or more drinks/day (a higher number of British "units") "showed faster declines on all cognitive measures compared with those" who consumed up to 1.5/day. "The effect size," the authors wrote, "is comparable to 2.4 extra years of cognitive decline in the global cognitive score, 1.5 extra years for executive function and 5.7 extra years for memory." Abstainers, ex-drinkers and occasional drinkers showed slightly more cognitive decline than the light-to-moderate drinking men. But the differences were not significant. Among women, there was no significant decline or advantage among any of the drinking groups (there were very few heavy drinkers). But "the 10-yr abstainers experienced faster decline in the global cognitive score and executive function corresponding to approximately 5.0 extra years of cognitive decline" among women. The number of female abstainers was also small.

Trying to explain the findings, the authors pointed out that "light to moderate alcohol consumption is associated with better vascular outcomes, while both abstinence and heavy alcohol consumption are associated with higher risk of vascular disease" which could increase risk of cognitive decline. Also, heavy drinking is linked to "detrimental short- and long-term effects on the brain." Ref 4    Go To Top

References
1 Comments to the 2015 Dietary Guidelines Advisory Committee, US Department of Agriculture: Center of Alcohol Studies, Rutgers University; Center for Science in the Public Interest; Consumer Federation of America & National Consumers League, Dec 2013-Jan 2014.
2 Phillips, D, et al "Official blame for drivers with very low blood alcohol content; there is no safe combination of drinking and driving," Injury Prevention, Published Online First; January 7, 2014.
3 McKnight-Eily, L, et al "Vital Signs: Communications Between Health Professionals and Their Patients About Alcohol Use - 44 States and DC, 2011," Centers for Disease Control and Prevention, January 7, 2014, 63.
4 Sabia S, et al, "Alcohol consumption and cognitive decline in early old age," Neurology, Published Ahead of Print, January 15, 2014.  

The US Supreme Court may clearly answer that question after it hears oral argument in an upcoming case, veteran alcohol beverage attorney Richard Blau told INSIGHTS. The fundamental issue is whether an anonymous tip, with no other evidence of wrongdoing, would be enough to stop and search an alleged drunk driver. Or does the 4th Amendment protection against unreasonable searches/seizures demand corroboration of the tip? And even if the 4th Amendment prevails, should there be a "drunk driving exception," to protect the public interest?

Back in 2000, the Court seemed to resolve the issue. It "reaffirmed that law enforcement may conduct a stop only where an anonymous tip has a 'moderate indicia of reliability,' and a 'tendency to identify a determinate person,'" Blau notes. But subsequently, a handful of federal and state courts, have "fashioned a de facto drunk driver exception to the corroboration requirement," he adds. Yet a few state courts have also rejected that exception. Meanwhile, Chief Justice Roberts has not only acknowledged the dangers of drunk driving but identified "the enhanced reliability of tips alleging illegal activity in public, to which the tipster was presumably an eyewitness," suggesting that he might well support a drink driving exception, if the tipster's an eyewitness. Scholars following the courts fall in on both sides.

The current case, involving two brothers transporting marijuana stopped by the police based solely on a tip of a "reckless driver" on the road, but no corroboration of reckless driving, will allow the court to decide whether a drunk driver exception is legitimate, Blau believes. While the implications include a broad range of possible criminal cases, "DUI cases may be the most affected by the Court's ultimate decision." Indeed, the US Solicitor General and 32 states plus DC filed briefs with the court arguing "in favor of a ruling that the compelling public interest in stopping drunk driving, balanced against the minimal intrusion of a car stop, makes it reasonable under the 4th Amendment" to stop cars based solely on anonymous tips as long as the police confirm the location and identification of the vehicle to show that the tipster "had a basis of knowledge and was truthful." Note there would be no requirement that the tipster has a basis of knowledge that the driver is indeed drunk.  

The US Supreme Court may clearly answer that question after it hears oral argument in an upcoming case, veteran alcohol beverage attorney Richard Blau told INSIGHTS. The fundamental issue is whether an anonymous tip, with no other evidence of wrongdoing, would be enough to stop and search an alleged drunk driver. Or does the 4th Amendment protection against unreasonable searches/seizures demand corroboration of the tip? And even if the 4th Amendment prevails, should there be a "drunk driving exception," to protect the public interest?

Back in 2000, the Court seemed to resolve the issue. It "reaffirmed that law enforcement may conduct a stop only where an anonymous tip has a 'moderate indicia of reliability,' and a 'tendency to identify a determinate person,'" Blau notes. But subsequently, a handful of federal and state courts, have "fashioned a de facto drunk driver exception to the corroboration requirement," he adds. Yet a few state courts have also rejected that exception. Meanwhile, Chief Justice Roberts has not only acknowledged the dangers of drunk driving but identified "the enhanced reliability of tips alleging illegal activity in public, to which the tipster was presumably an eyewitness," suggesting that he might well support a drink driving exception, if the tipster's an eyewitness. Scholars following the courts fall in on both sides.

The current case, involving two brothers transporting marijuana stopped by the police based solely on a tip of a "reckless driver" on the road, but no corroboration of reckless driving, will allow the court to decide whether a drunk driver exception is legitimate, Blau believes. While the implications include a broad range of possible criminal cases, "DUI cases may be the most affected by the Court's ultimate decision." Indeed, the US Solicitor General and 32 states plus DC filed briefs with the court arguing "in favor of a ruling that the compelling public interest in stopping drunk driving, balanced against the minimal intrusion of a car stop, makes it reasonable under the 4th Amendment" to stop cars based solely on anonymous tips as long as the police confirm the location and identification of the vehicle to show that the tipster "had a basis of knowledge and was truthful." Note there would be no requirement that the tipster has a basis of knowledge that the driver is indeed drunk.  

Armed with a new study and an Affordable Care Act that funds a powerful prevention tool, the Centers for Disease Control's director Dr. Tom Frieden advocated for greater use of Alcohol Screening and Brief Interventions (ASBI) at a press conference earlier this month. ASBI is a simple, straightforward prevention tool - basically brief conversations between health professionals and their patients about current drinking levels and potential steps that can be taken to reduce drinking, if warranted - that can effectively, and inexpensively, reduce problem drinking and drinking problems, as INSIGHTS and others have reported. Unfortunately, these conversations simply don't happen often enough as part of primary care, stressed Frieden.

"We're not saying no one should drink," Frieden insisted several times during his brief talk with the press. Most Americans drink "without adverse health problems," he added. But too many adults drink too much on certain occasions, or overall, and that leads to a litany of well-known problems and costs, Frieden said. He focused on binge drinking (5+ per occasion for men, 4+ for women), frequent bingeing, exceeding weekly limits under the US Dietary Guidelines (15+ for men, 8+ for women) and any consumption by pregnant women. In 2011, approximately 18.3% of US adults reported binge drinking at least once in the month prior to being asked. Frieden used the 38 mil figure that the percentage suggests as the number of Americans "who drink too much."

In the same year, this new study of 167,000 adults in 44 states found, 15.7% of adults said they had "ever" discussed their alcohol use with a health professional; just 7.6% had that discussion in the past year. Among self-reported binge drinkers, 25.4% had ever discussed drinking; 13.4% in the previous year. Most alarming to Frieden: "only 34.9% of those who reported binge drinking 10 or more times in the past month had ever discussed alcohol with a health professional." That's even while 6-15 minute ASBI interventions have been shown to "significantly reduce weekly alcohol consumption (by 3.6 fewer drinks/week for adults) and binge level episodes (reported by 12% fewer participants)." ASBI also results in patients sticking more closely to drink limits. What's more, "effects can last for years and show improvement in health care utilization outcomes including fewer hospital stays and lower costs," the study points out. Yet, while brief counseling clearly "works," Frieden concluded: "The health system is not doing an effective job finding out about problems and about patients who want to reduce their drinking."

Frieden pegged the timing of his conference to the study release, while also noting that the under Affordable Care Act this service is covered without co-pays. Also, two large health systems have recently shown some success with expanded use of ASBI. Kaiser Permanente in California provided over 200,000 on-site interventions and referrals and the New York City Health Department screened "10s of thousands" of patients in recent years. These experience show that ASBI can become part of the same "routine patient care" as screening for high blood pressure or cholesterol, Frieden said, and that health insurers can include ABSI as part of their "standard services" and integrate the data with patients' records. Ref 3  

The call from the National Transportation Safety Board last year to lower the legal BAC limit for driving from .08 to .05 did not get much traction. Even MADD has not been a vocal supporter. But that may change given the findings of a new study published in the British Medical Journal's Injury Prevention. Researchers from the University of California, San Diego reviewed fatal crash data in the US from 1994-2011 from the Fatality Analysis Reporting System (FARS). Information was available on over 570,000 fatal crashes, with BAC data available by increments of .01. The key finding: even at very low BAC levels, "buzzed" drivers are much more likely to be deemed "responsible" for the accident than sober drivers.

The authors had access to police reports that identified 50 possible "driver factors" in a crash, i.e. "driving on the wrong side of the road," "making an improper turn," etc. They also had access to demographic information on the individuals involved to judge other possibly confounding variables. Here are the main findings, which applied to both men and women.

• "Even minimally buzzed drivers are much more likely than sober drivers to be blamed for a crash." The authors developed a new measure called SOB ("sole official blame ratio"). As baseline, they found that among drivers with a BAC of .08, there are "about 5 times as many drivers who are officially and solely blamed for the crash as held blameless." Among drivers as low as .01 BAC, the SOB ratio is 2.45 compared to 1.54 for sober drivers. Overall, "buzzed drivers" (.01 to .07 BAC) had an SOB of 3.39 vs 1.62 for sober drivers. "Thus," the authors note, "SOB for 'buzzed drivers is more than double SOB for sober drivers."
• "SOB does not increase abruptly at BAC of .08: there is no threshold effect at the legal US limit for intoxicated driving."
• Up to a BAC level of 0.24, "the higher the driver's BAC, the more likely the driver is to be blamed for the crash." SOB holds steady after .24
• Among all 55 demographic subgroups" SOB for 'buzzed' drivers exceeds SOB for sober drivers." The difference is statistically significant in 53 of 55 subgroups.

Because so many of the crashes involved a drinking driver and a sober driver, the authors dealt with "natural experiments" that eliminated many potentially confounding factors like weather, road condition, geography. Analysis of these "natural experiments" also showed that "the drinking driver, no matter how low his or her BAC is, is much more likely than the sober driver to be officially assigned sole blame for the crash." Even at BAC levels between .01 and .03 these "minimally buzzed drivers" were blamed about 60% of the time for the crash, vs about 40% of the time for the sober drivers. The gap widens considerably as the BACs rise.

The policy implications of these findings are fairly clear and the authors offer them up:

• Ad campaigns against "buzzed" driving should be ramped up.
• MADD should broaden its focus to include "buzzed" driving.
• States should sanction not only young drivers for "buzzed" driving but adult drivers as well.
• Adopt .05 BAC as the legal limit.
Ref 2