A Lawsuit Against "Big Alcohol" for Advertising to Underage Drinkers
Are Minors Accountable for Their Actions?

By SHERRY F. COLB

Wednesday, Dec. 03, 2003

On November 13, Ayman Hakki filed a lawsuit in Washington, D.C., against several alcohol producers. The suit claims that in an effort to create brand loyalty in the young, the defendants have for over two decades deliberately targeted their television and magazine advertising campaigns at consumers under the legal drinking age.

Hakki asks for damages including all of the profits the defendants have earned since 1982 from the sale of alcohol to minors. He is also seeking class-action status for his suit. The plaintiff class would consist of all parents whose underage children purchased alcohol in the last twenty-one years.

The lawsuit against makers of beer and liquor resembles earlier litigation against tobacco companies in which plaintiffs identified commercial advertising targeted at children, including the famous "Joe Camel" character. Such suits paved the way for major settlements against Big Tobacco.

Suits against tobacco and alcohol companies for targeting youthful purchasers reflect a particular philosophy regarding people under the legal drinking or smoking age: they are too immature to take full responsibility for their actions. This philosophy is in serious tension with the approach that has increasingly come to dominate our society's approach to juvenile criminal justice: when minors commit crimes, they ought to be held accountable and punished as adults. This inconsistency becomes especially clear when we examine efforts to distinguish the two contexts.

Does the Idea of "Personal Responsibility" Apply to Minors?

Those who criticize litigation against Big Tobacco (and will, presumably, also oppose legal action against "Big Alcohol") argue that all of the lawsuits, including those brought by adults, are premised on the view that individuals are not entirely responsible for their own actions.

Critics charge that even if cigarettes and alcohol are addicting and pose serious health risks to the people who use them, virtually every user somewhere along the line has made an individual, voluntary decision nonetheless to consume these products. For that decision, they urge, the user - and not the creator of the product - must rightly assume responsibility.

Proponents of such suits might respond that even when people are aware of the health risks posed by their behavior (risks which are not now - and perhaps never were - entirely unknown), many begin to use the product at an age at which they are extremely susceptible to peer pressure and other influences that compromise their ability to "just say no."

Once addicted at a vulnerable age, the argument goes, young users grow into adults who find the addicting substances difficult or impossible to resist. By defeating an individual's will at an early stage, it follows, producers of such substances deprive her of the ability to decline further use when she reaches adulthood.

Such arguments are persuasive to many people in the context of tobacco (and in all probability alcohol) litigation. By contrast, however, arguments of this sort have faced repeated and increasingly firm rejection in the criminal context. The criminal justice system routinely moves defendants under the age of eighteen (and sometimes much younger) into the adult courts for committing serious crimes.

A little over a year ago, for example, the State of Florida successfully prosecuted two brothers, Alex and Derek King, for the first degree murder of their father, Terry King. The boys were, respectively, twelve and thirteen years of age when one, at the direction of the other, bludgeoned his father to death with a baseball bat. Yet they were convicted and treated as adult offenders.

And most famously at the moment, Lee Malvo is standing trial for a murder that was part of a three-week spree of shootings that killed ten people and wounded six in the Washington area last fall. Though Malvo was seventeen years old at the time of the shootings, prosecutors are trying him as an adult and will likely seek the death penalty.

The United States Supreme Court has itself weighed in on the issue of underage responsibility. In Thompson v. Oklahoma, decided in 1988, the Court held that to be eligible for the death penalty under the U.S. Constitution, an offender must have been at least sixteen years old at the time of his offense. The implicit premise of the decision, understood as such by courts throughout the country, is that capital punishment is acceptable when the offender was sixteen or older at the time of his crime.

Youthful Responsibility Versus Big Alcohol Lawsuits: An Inconsistency?

Interestingly, the trend favoring full criminal responsibility for young people seems to co-exist with our society's increasing willingness to treat underage smoking and drinking (and derivatively perhaps, the continuing drinking and smoking of adults who began at a young age) as the fault of manufacturers, rather than users. Lawsuits that would have had no traction years ago now survive and sometimes result in impressive settlements.

To reconcile these two trends, one might make the following argument. One can acknowledge that every person is responsible for her criminal actions, as young people and as adults. Acknowledging that responsibility, however, is entirely consistent with the notion that others who encourage and tempt people to commit offenses are worthy of condemnation as well. Guilt on the part of drug users, in other words, does not logically preclude responsibility (perhaps even greater responsibility) on the part of their dealers.

Consider an analogous example of this phenomenon. John pays Jane to kill Dave, which Jane does. John and Jane can now both be held responsible for their roles in the murder of Dave.

Though Jane is guilty of killing Dave, in other words, John is independently guilty of murder. That is because we understand that by encouraging or tempting Jane to commit a murder, John contributes causally and culpably to the murder's actual occurrence, even though the encouragement and temptation do not in any way mitigate the seriousness of Jane's actions.

This argument is persuasive, as far as it goes. But it does not truly address the tension that I identified earlier. In the above example, John and Jane can both be responsible for Dave's death. And that joint responsibility means that both culprits can be criminally prosecuted and/or held civilly responsible in a wrongful death action by Dave's family. The law will not provide a forum, however, for Jane's suing John for having encouraged her to kill Dave in the first place. By responding to John's incentives, Jane does not become John's victim.

In the suits against tobacco companies and manufacturers of alcoholic beverages, the producers of harmful products are like John, encouraging illegal behavior, and the youthful smokers and drinkers are like Jane, succumbing to temptation. As accomplices in their respective misconduct, neither advertisers nor John has standing to sue users and Jane, respectively, for damages.

Put another way, there is no analogue for Dave - the victim of both John and Jane - in the litigation against manufacturers of addicting substances. If the smoker or drinker foreseeably injured a third party, on the other hand, then that third party would provide an appropriate analogue to Dave. For that reason, victims of gun violence might have a stronger case against weapons manufacturers, consistent with the personal responsibility of gun owners, than alcohol and tobacco users have against manufacturers.

Drinking and Smoking Versus Crime: Can Paternalism Offer a Distinction?

Still intent on denying any philosophical inconsistency, one might argue that murder, on the one hand, and underage drinking and smoking, on the other, are quite distinct phenomena. In the case of murder, a person irreparably harms another human being (and the victim's loved ones). In the case of underage smoking and drinking, by contrast, a person harms him or herself.

Because drinking and smoking are self-destructive acts, it follows that laws against underage drinking and smoking are inherently paternalistic measures intended to protect the young. Seen in that light, one might argue, young people are victims of the manufacturers, just as Dave is a victim of John.

To the extent that we accept this distinction, laws against underage use of cigarettes and alcohol are meant to protect the underage user and not a third party. Therefore, enforcement of such laws need not resemble that of laws against murder, which are designed exclusively for the protection of innocent victims. The murder laws are not paternalistic; they seek to punish, deter, or incapacitate the murderer (rather than to protect him from himself).

Putting aside non-paternalistic arguments against underage drinking (such as the mayhem and death caused by teenagers' drunk driving), the paternalism argument does seem to distinguish effectively between harmful crimes and so-called "victimless" crimes. This distinction, however, does more to support than to rebut the objection that people should be held responsible for their actions.

Paternalistic legislation protecting minors from harmful substances is itself at odds with the notion of holding minors criminally responsible for their actions. Disgorging the profits of alcohol producers whose products were sold to minors, moreover, suggests that minors should not even be held responsible for their decision to make a destructive purchase.

Alternatively, "victimless" crimes may be justified by non-paternalistic rationales, such as the costs that self-destructive behavior imposes on the wellbeing of the entire community (by reducing the actor's contribution to society). If we accept this approach, then the criminal no longer occupies the status of victim at all. Instead he represents a kind of "accomplice" with the manufacturer in hurting others who must bear the consequences of the actor's vice. On that logic, of course, no compensation is due the user.

Consequences of the Inconsistency

It is hard to predict where this inconsistency - between the juvenile's responsibility for crime and lack of accountability for using alcohol or tobacco will, or should, take us.

Perhaps the alcohol suits will fail, on the same theory of personal responsibility that animates the prosecution of youthful offenders. The choices of a minor who picks up a gun, and a minor who picks up a bottle, or a cigarette, may ultimately be seen as equally free and thus equally attributable to the actors in question.

Or perhaps instead, youth will come to be understood more fully as mitigating criminal actions, particularly as research suggests that adolescent brain development is incomplete in areas associated with self-control. In that event, youthful offenders may receive briefer sentences than their adult counterparts. And their lawsuits against alcohol producers may be able to survive where the same suits by adults would fail.

Finally, there is a third alternative: The logical inconsistency in the way in which we view minors' personal responsibility (or lack thereof) may persist, as so many do, without altering either of the trends that are in tension with one another. As Oliver Wendell Holmes famously wrote, "[t]he life of the law has not been logic; it has been experience."


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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