An Ogden distillery owner will be allowed to buy liquor advertisements on TRAX trains and buses after initially being told such ads were illegal in Utah.
“We are always happy when free speech wins and decisions are made in a manner that protects the First Amendment,” said Steve Conlin, a managing partner with Ogden’s Own Distillery, maker of Five Wives Vodka, Underground Herbal, Porter’s Fire and Madam Pattirini Gin.
That wasn’t the case last week when Conlin called Lamar Advertising, which places ads on Utah Transit Authority vehicles. Conlin had seen beer and hard cider ads on TRAX trains and buses and wanted to know what it would cost to advertise his products.
“I was told it was illegal to be advertising spirits in Utah,” Conlin said. “My gut feeling is that people don’t know what the law is.”
While alcohol advertising was banned in Utah decades ago, it has been legal since 2001, when the 10th U.S. Circuit Court of Appeals overturned the law because it violated commercial free speech.
Since then, Utah breweries, wineries and distilleries have advertised regularly in newspapers, theater playbills and billboards.
After being refused, Conlin asked for — and received — a copy of UTA’s ad policy, which he shared with The Salt Lake Tribune.
The transit agency does not allow advertising that “promotes alcohol in a manner inconsistent with federal and/or state law or regulation,” the written policy states.
The Tribune contacted UTA about the issue Monday. At that time, spokesman Carl Arky said the agency was aware of Conlin’s concern and “the matter has already been taken under consideration” by UTA lawyers.
On Tuesday afternoon, the transit agency issued this written statement: “After further consideration and review, we have clarified that the advertising of spirits is in compliance with our policy.”
Shortly before UTA issued the statement, Conlin received a call from the advertising agency saying he was free to advertise on UTA vehicles.
Confusion about liquor advertising may have occurred because the Utah Department of Alcoholic Beverage Control — the state agency that operates liquor stores — is prohibited from advertising or promoting the sale of alcohol in any way, said DABC spokesman Terry Wood.
Under state law, the DABC also cannot put ads in the windows of its own stores or package agencies, he said. “But licensees are free to advertise as they see fit. We have no control over that.”
Wood did say that a company ”could decide that it’s not going to allow liquor advertisements.”
“But can a quasi-government entity such as UTA make that call?” Conlin asked. “That would be quashing commercial free speech for no legitimate reason.”
Ogden’s Own is no stranger to free speech controversy. In 2012, Idaho banned its Five Wives Vodka because the label depicts five turn-of-the-20th-century women dressed in undergarments holding strategically placed kittens. The Idaho State Liquor Division later reversed the decision after the company threatened to sue.
Conlin said issues with alcohol sales and consumption arise because many state and local leaders in Utah (and Idaho) — as members of the LDS Church, which teaches Mormons to abstain from alcohol — are unfamiliar with how liquor is produced.
“People think beer or wine has a different amount of alcohol than spirits,” he said. “But a bottle of vodka is equal to a 24-pack of beer when it comes to the amount of ethanol.”
So when might Fives Wives Vodka ads show up on the Red Line?
Maybe soon. Maybe never. Conlin was told it would cost $5,000 a month to put five ads on TRAX cars.
“It’s a big spend that I’m not sure we would commit to,” he said. “But I’m certainly glad to have the right to.”