The lawsuit, filed in Superior Court in the District of Columbia on behalf of Washington plastic surgeon Ayman R. Hakki, by law firms headed by David Boies and his son David Boies III, presents a list of accusations that echo claims of tobacco lawsuits of recent years.
The suit charges that alcohol marketers engaged "in active, deliberate and concerted efforts to maximize their profits by attempting to establish brand loyalty among underage consumers." It alleges alcohol marketers, using code words and denials to cover their real marketing intentions, used cartoon characters, video game references and other devices in ads running on youth-oriented media to violate industry ad codes.
While the suit doesn't name two of the industry's biggest marketers-Anheuser-Busch and Miller Brewing Co.-it names two brewers, Coors Brewing Co. and Heineken; one wine marketer, Kobrand, and three top spirits makers, Mark Anthony Brands (makers of Mike's Hard Lemonade), Brown-Forman and, Diageo, along with associated companies. It also cited the Beer Institute.
Alcohol companies that commented last week reacted strongly.
"Diageo directs its advertising and marketing to adults over the legal purchase age and is proud of its efforts toward discouraging underage drinking and alcohol misuse," the company said in a statement. "Diageo will vigorously defend this lawsuit."
In a statement, Brown-Forman said it "adheres to its own strong internal marketing code, which includes a system of internal advertising review and compliance," along with the code of responsible marketing of the Distilled Spirits Council of the U.S.
Dan Tierno, VP-corporate affairs for Heineken, said while he hadn't yet seen the suit, "we are convinced that our advertising is appropriate and responsible."
Mr. Tierno and marketing industry officials noted that the suit was filed just weeks after both the Federal Trade Commission and the National Academy of Sciences issued reports about industry marketing. While the National Academy study was critical of some industry advertising practices, neither it nor the FTC report could find any correlation between advertising and youth drinking.
Dick O'Brien, exec VP of the American Association of Advertising Agencies, questioned the suit and the involvement of the elder Mr. Boies, who represented Al Gore after the 2000 vote. "This lawsuit looks to have about as much merit as the Florida recount over which Mr. Boies also presided."
Dan Jaffe, exec VP of Association of National Advertisers, also questioned whether individual company actions could be examined in a joint industry suit.
"This is a highly regulated industry that has been a major focus of the FTC and state attorneys general and the government and this was missed by all of them?" he said. "Some of the key predicates [of the suit] have been looked at by independent groups and found wanting."
Neither Dr. Hakki nor his attorneys returned calls last week, but an alcohol industry critic, while pleased with the suit, also expressed some puzzlement. George Hacker, director of the alcohol policy project for the Center for Science in the Public Interest, said "They are talking about marketing plans, foreign focus groups and code words, that I haven't seen [described] in my files." He also added, "We wonder why Anheuser-Busch and Miller are conspicuously absent."
The suit claims that "Far from passively receiving an unintended windfall from this illegal and deadly trade to underage drinkers, defendants instead engage in active, deliberate and concerted efforts to maximize their profits by attempting to establish brand loyalty among underage consumers and encouraging them to buy their products."
The cited activities include advertising, but also allege product placement in TV and films and promotional activities attempt to influence teenagers and convince them it's OK to break the rules.
The marketing, the suit charges, is "aimed at breaking down underage consumers resistance to illegal alcohol consumption," and "establishing in the minds of teenagers the impression that the use of their products is associated with sexual prowess, physical attractiveness, heightened confidence and immunity from the consequences of rule breaking and risky behavior."
Specific examples cited include:
* A Bacardi by Night ad campaign which the suit said features "wild, raucous irresponsible and immature behavior by models chosen to appeal to underage consumers." One ad refers to video games while Bacardi's Web site features cartoon characters. Bacardi Co. did not return calls for comment. Bacardi agencies include Interpublic Group of Cos.' McCann-Erickson Worldwide and Avrett Free & Ginsberg, both New York.
* Brown-Forman's ad for Fontana Candida using a young looking woman wearing bangle bracelets entangled in a fish net with the headline "Fresh, bright and great with today's catch."
* Heineken's ad with the beer bottles taped to a Nintendo game controller. Publicis, New York, handles Heineken.