Statement of Commissioner Orson Swindle

In the Matter of

DriBeck Importers, Inc., Docket No. C-3859

In August 1998, the Commission released a proposed complaint against Beck's North America, Inc. in connection with its dissemination of advertisements showing young adults drinking beer on a boat and engaging in dangerous activities, such as standing on the bowsprit. The proposed complaint challenged the ads as unfair acts or practices in or affecting commerce in violation of Section 5 of the FTC Act. At the same time, the Commission also accepted for public comment a consent agreement that would prohibit Beck's from disseminating these specific ads or any others depicting a person consuming alcohol on a boat while engaged in activities that increase the risk of falling overboard or violate federal boating safety laws. Although I voted to accept the consent agreement for comment, I now dissent from the issuance of the complaint and final consent order because, upon further reflection, I conclude that the requirements for unfairness are not met.

I continue to believe that the ads, which are inconsistent with the Beer Institute's Advertising and Marketing Code and may violate federal and state boating safety laws, are ill-conceived and unwise. They are, however, directed at young adults who by any reasonable standard should have the ability to exercise their own judgment when undertaking clearly risky activities. In a January 15, 1999, decision, the U.S. Court of Appeals for the D.C. Circuit rejected the view that certain types of advertising claims "have such an awesome impact on consumers as to make it virtually impossible for them to exercise any judgment . . . ." Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999), 1999 U.S. App. LEXIS 464, at * 16. The court further characterized Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 496 U.S. 91, 105 (1990), as rejecting the "paternalistic" assumption that an adult viewing a claim is "'no more discriminating than the audience for children's television.'" 1999 U.S. App. LEXIS 464, at * 16.

An unfair act or practice is one that is likely to cause substantial injury to consumers that is not reasonably avoidable by consumers themselves and is not outweighed by countervailing benefits to consumers or competition. 15 U.S.C.  45(n). In order for the Beck's advertisements to be unfair, they must be likely to cause consumers substantial injury, such as increasing the likelihood they will fall off a boat and drown, and this injury must be one that consumers cannot reasonably avoid by themselves. Unlike in other unfairness cases, where ads influenced children to engage in unsafe activities, in this case the consumers of Beck's products -- through the exercise of their own adult judgment -- surely can reasonably avoid any injury that they might suffer from the advertisements' depiction of dangerous activity. In other words, a reasonable adult could easily see that the conduct depicted in the ads is rather stupid and dangerous and would conclude that it would be unwise to engage in it.

This case calls attention to the ongoing debate over how far the government should go in trying to protect people from themselves. The Commission is seeking to protect people who may decide to act unreasonably by choosing to put themselves at risk of injury. Government cannot and should not shield people who knowingly choose to expose themselves to such risks.

I dissent.