Think of a few of the most memorable restaurant marketing promotions of recent history: the Five Dollar Footlong, the Dollar Menu, the 4 for $4 Meal. What do they have in common? Besides being short and catchy, each slogan lets customers know the price they can expect to pay. For that reason, these ads immediately succeeded in attracting customers eager for a good deal.
Yet until recently, Virginia muzzled its bars and restaurants to prevent this type of effective advertising. Although happy hour alcohol discounts are entirely legal, advertising the price of those discounts was forbidden. So if a restaurant offered a Four Dollar Frosé for happy hour, it was a violation of Virginia law to actually use that phrase in advertising. In fact, it was a violation to use any slogan to advertise happy hour other than “happy hour” or “drink specials.” Even an innocuous catchphrase such as “Winedown Wednesdays” would have run afoul of the law.
Worse, restaurateurs lived in uncertainty over just how far this prohibition extended. The statutes and regulations concerning happy hour had been written over 30 years ago, before the advent of web advertising. For that reason, its definitions were hard to apply to modern questions: Is a post on Facebook or Twitter an advertisement? Business owners weren’t sure, and in that situation the natural reaction is to take as few risks as possible. The result was stifled expression, hampered competition and uninformed consumers.
But happily, this prohibition is ending. In February, the Virginia legislature repealed the bans on both advertising happy hour prices and creative happy hour slogans.
For the past year, Pacific Legal Foundation had been litigating a constitutional challenge to these laws on behalf of restaurateur Chef Geoff Tracy, suing to strike down the laws as violating the First Amendment right of entrepreneurs to speak truthfully about their business. The lawsuit brought attention to this outdated law, and testimony at Virginia legislative hearings even identified this First Amendment problem as a motivation to eliminate the laws.
This story with a happy ending for Virginians demonstrates something important about constitutional litigation. All too often, the relationship between constitutional rights and democratic values is portrayed as a conflict; lawyers and clients who seek to vindicate fundamental rights are portrayed as crusaders who strike down popular laws and thwart the will of the majority. But as this case shows, often unconstitutional laws remain on the books not because they enjoy popular support, but instead simply through a lack of attention.
It is remarkable that a law that stubbornly remained on the books for decades was repealed with little controversy: by a 40-0 vote in the Virginia State Senate and 94-2 in the Virginia House of Delegates. The swiftness and near-unanimity with which the repeal passed suggests the regulations had remained in place not out of necessity but out of pure inertia.
It’s not surprising that a law such as the happy hour advertising ban would be unpopular, since it treated Virginians as incapable of making informed consumer decisions. Justice John Paul Stevens put it eloquently in the 1996 Supreme Court case, 44 Liquormart, Inc. v. Rhode Island, which struck down a similar ban on advertising alcohol prices. As he wrote, such bans on truthful advertising “usually rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.”
Such laws bleed popular support once the public becomes broadly aware of how their access to reliable information, and ability to make informed decisions, is being restricted. By bringing attention to outdated and misguided laws such as Virginia’s happy hour advertising laws, constitutional lawyers and scholars serve both the Constitution and the democratic process.
Once the new law goes into effect today, bars and restaurants finally will be able to sing their happy hour specials from the rooftops — and from radio ads, billboards, web ads and so forth. That will be a truly happy hour indeed.
Thomas Berry is an attorney with Pacific Legal Foundation and was a member of the litigation team that represented Geoff Tracy in his lawsuit. Follow him on Twitter @Thomas_A_Berry.
This article was originally published in The Hill on July 1, 2019.