The Impact of Alcohol & Tobacco Advertising on the Latino Community as a Civil Rights Issue

173 Pages·2011·1.54 MB·English

by  Katherine Culliton

From the SelectedWorks of KATHERINE
CULLITON-GONZÁLEZ
December 2005
The Impact of Alcohol & Tobacco Advertising on
the Latino Community as a Civil Rights Issue
Contact Start Your Own Notify Me
Author SelectedWorks of New Work
Available at:http://works.bepress.com/katherine_culliton/2
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Berkeley La Raza Law Journal
Fall 2005

Article

*71 THE IMPACT OF ALCOHOL AND TOBACCO ADVERTISING ON THE LATINO COMMUNITY AS A
CIVIL RIGHTS ISSUE

Katherine Culliton [FNd1][FNd1]

Copyright (c) 2005 Berkeley La Raza Law Journal; Katherine Culliton

I.

Introduction: impact of Alcohol and Tobacco Advertising on the Latino Community

The impact of alcohol and tobacco advertising on the Latino community is a health issue, and as this paper will
discuss, also a civil rights issue. Tobacco and alcohol use have not always been viewed in this way. For example,
during the Prohibition Era of the 1920's, alcohol abuse was considered a moral issue. [FN1][FN1] Attitudes in this
country towards cigarette smoking have also changed. During the second half of the 20th Century, cigarette smoking
evolved into a public health issue as the public was informed of its highly addictive nature and serious health
consequences. [FN2][FN2] Public policy changed through laws that now regulate alcohol and tobacco companies,
particularly in the context of advertising. [FN3][FN3] These new laws have positively influenced public attitudes
and public health, and generally speaking, since the enactment of these laws, the United States has seen a decline in
the rates of smoking and alcohol abuse. Nevertheless, companies continue to advertise and promote alcohol and
tobacco through methods that these laws intend to curtail. Worst of all, alcohol and tobacco advertising is
increasingly being directed at the young and growing Latino population.

Aggressive marketing campaigns recently launched by U.S. beer companies through Spanish-language
television networks are one example of how laws that *72 prohibit such advertising continue to be ignored.
[FN4][FN4] On these networks, ads are aired more frequently and are more aggressive in nature than what is
permitted on “mainstream” television. [FN5][FN5] Also, advocacy groups have also found that tobacco advertising
is more common in Latino neighborhoods and at events attended predominantly by Latinos than compared to “non-
minority” venues. [FN6][FN6] Similarly, both alcohol and tobacco advertising are overly directed at Latino youth,
as compared to their non-Hispanic White counterparts. [FN7][FN7] These examples indicate that advertising that
targets Latinos is not only a public health issue, but as this article will discuss, due to various forms of
discrimination against Latinos, it is also a civil rights issue. In particular, these types of ads have resulted in serious
health consequences that have not been adequately addressed by the legal system to date. It is also legally
questionable that the marketing of these products has targeted Latino youth. In addition, aggressive advertising
campaigns disparately impact the Latino community, because it is the race/ethnic group that suffers from the worst
health disparities in the United States today. The failure of government entities to regulate marketing and protect
Latino consumer rights represents another civil rights issue at stake. The legal consequences of these forms of
discrimination and discriminatory impacts will be discussed herein.

This section will discuss emerging proof that alcohol and tobacco advertising disproportionately targets the

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Latino community, the youngest, largest and fastest-growing group in the United States today, in questionable
ways. It will also include information about the grave health impact of alcohol and tobacco on the Latino
community. Section II will then analyze various legal strategies that could be utilized to address aggressive alcohol
and tobacco marketing campaigns that target Latinos. Part A of Section II will discuss possible statutory-based
remedies, such as the 1964 Civil Rights Act, federal consumer protection regulation, state regulation, and new
legislation that may be necessary to focus public interest and advocacy efforts. Part B of Section II will delve into a
discussion of litigation strategies and includes an analysis of the legal theories already utilized in tobacco litigation
that have not adequately represented the rights and interests of the Latino community. It will also discuss ways to
build upon current legal strategies to redress targeted marketing and protect the health of the Latino community. For
the sake of brevity, Part A of Section II will focus on legal remedies for alcohol advertising that unfairly targets the
Latino community and Part B will address the same for unfair tobacco advertising. The legal strategies for each
often overlap and can be applied in either context.

A. Demographic Data

According to the 2000 U.S. Census, Hispanics (the official term used by the U.S. Census Bureau) [FN8][FN8]
account for at least 14 percent of the population in the U.S., *73 rendering them the largest “minority” group in this
country. [FN9][FN9] Over 40 million Hispanics live in the U.S. and Puerto Rico, and the population is young and
growing. [FN10][FN10] The Hispanic population is expected to grow to 73.3 million and constitute 20.1 percent of
the U.S. population by 2030. [FN11][FN11] Moreover, the current Latino population is the youngest ethnic group in
the U.S., with an average age 14 years younger than that of non-Hispanic Whites. The fact that recent Latino
immigrants are younger and have more children than other groups accounts for the statistical difference.
[FN12][FN12] According to the 2004 Census figures, Latino children and youth accounted for 34.3 percent of the
Latino population, compared to 22.3 percent of non-Hispanic Whites. [FN13][FN13] Also in 2004, individuals
under age 21 accounted for 39.2 percent of the Latino population, compared to 26.1 percent for non-Hispanic
Whites. [FN14][FN14] These figures, showing the overall relative youth of the Latino population, are important
considering that the legal age is 18 for smoking and 21 for drinking. United States law and public policy recognize
that alcohol and tobacco may be particularly harmful to young people, who are considered a protected class for these
purposes. [FN15][FN15]

Due to the susceptibility of youth, advertising or marketing to young people is considered to be a highly
effective business tool. [FN16][FN16] Therefore, the Latino population in the United States represents a young,
significant, and rapidly growing potential market. In early 2005, studies estimated the buying power of Latinos at
$653 billion consumer dollars, [FN17][FN17] and by late 2005, it had surpassed $700 billion. [FN18][FN18] As
alcohol and tobacco companies have admitted, these demographic facts are the main reason that their companies are
targeting Latinos with increasingly aggressive *74 advertising campaigns. [FN19][FN19] Furthermore, experts have
documented that greater levels of alcohol advertising correlate with increases in alcohol-related violence and deaths
in the community. [FN20][FN20] Considering the demographics, failure to address and reduce alcohol and tobacco
abuse among Latinos “is likely to result in a significant amount of preventable disease and death for millions.”
[FN21][FN21]

B. Impact of Tobacco and Alcohol Use on the Latino Community

Alcohol and tobacco use has a significant and negative impact on the Latino community. With regard to
tobacco abuse, in 2001, the National Latino Council for Alcohol and Tobacco Prevention (LCAT) reported that
approximately 20.4 percent of Latino adults smoked cigarettes in 1997, and between 1990 and 1997, the prevalence
of smoking among Latino students increased by 34 percent. [FN22][FN22] During the same period, smoking among
non-Hispanic White students increased only by 28 percent. [FN23][FN23] Since then, the Campaign for Tobacco
Free Kids and LCAT reported that “the tobacco marketing [directed at Latinos] is having an impact, as smoking
rates among Hispanic high school students increased from 19.8 percent in 2002 to 20.5 percent in 2004, while
overall smoking rates declined.” [FN24][FN24]

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Several points of clarification are in order. First, the actual rate and increase in smoking among Latino youth
may be even higher, as Latinos experience the highest high school dropout rate, and major studies have only focused
on high school students. [FN25][FN25] Secondly, the increase in smoking among Latino youth is set against a
backdrop of declining smoking rates among non-minority youth. Declining smoking rates among non-minority
youth are due to tobacco control measures, including clear prohibitions against marketing to youth, effective since
the 1998 state tobacco settlement. [FN26][FN26] Third, the overall increase in Latino youth smoking is troublesome
because nearly 90 percent of smokers begin smoking as pre-teens or teenagers, [FN27][FN27] and the addiction rate
for smoking is higher than the addiction rates for *75 marijuana, alcohol, or cocaine. [FN28][FN28] Moreover, the
likelihood of addiction, risk of lung cancer and other life-threatening diseases increases when the person begins to
smoke at a younger age. [FN29][FN29] Cigarette smoking is the single most preventable cause of disease and
premature death in the U.S., and has been related to a variety of health problems, including cancers, cardiovascular
diseases, and respiratory diseases. [FN30][FN30] The prevalence of tobacco use is significant because the leading
causes of death for Latinos include heart disease, cancer, and pulmonary/respiratory problems. [FN31][FN31]
Secondhand smoke also causes significant damage to Latino community health. Latinos are the largest segment of
workers in the hospitality industry, which is the industry that has the greatest exposure to secondhand smoke.
[FN32][FN32] Compared to other ethnic groups, Latinos generally have lower smoking rates, more smoke-free
homes, and express support for smoke-free laws, but their over-exposure to secondhand smoke in the workplace has
caused higher rates of heart disease and lung cancer. [FN33][FN33]

With regard to alcohol abuse, although the U.S. Surgeon General has reported that alcohol consumption among
Latinos is comparable to that among non-Hispanic Whites, [FN34][FN34] other studies have demonstrated that
alcohol abuse is an extremely serious Latino community health problem. According to one study, Latinos accounted
for 18 percent of total episodes of frequent, heavy drinking reported in 1995, compared to 12 percent for Whites,
and 15 percent for Blacks. [FN35][FN35] Another study has reported that Latino males in their 30's consume more
alcohol and suffer more from alcohol related problems than White males in the same age group. [FN36][FN36]
Mexican Americans in particular have higher rates of heavy drinking and consume larger quantities alcohol during
each sitting. [FN37][FN37] Latinos are twice as likely to die from cirrhosis of the liver as non-Hispanic Whites.
[FN38][FN38] Alcohol also leads to increasing domestic violence in Latino families, and Latinas suffer nearly three
times as many social consequences of drinking as White women. [FN39][FN39] Furthermore, Latino youth are more
likely to drink and get drunk at an earlier age than Black or White youth. [FN40][FN40] Lack of access to
prevention and intervention also renders the impact of alcohol abuse more severe in Latino communities.
[FN41][FN41]

*76 Experts on Latino health consider reported statistics on alcohol and tobacco abuse to be artificially low due
to the systemic failure to appropriately include the Latino community in public health studies. [FN42][FN42] The
National Institutes of Health (NIH) conducted a recent study on the issue in conjunction with the Centers for Disease
Control and Prevention (CDC) and the Yale University School of Public Health. [FN43][FN43] The researchers
found that Blacks and Hispanics are willing to participate in public health studies, and that when given the
opportunity to participate, they do so at the same rate as non-Hispanic Whites. [FN44][FN44] Yet, public health
research has failed to include minorities. The NIH reported that “researchers found big differences when it came to
who was asked to participate.” [FN45][FN45] Other improvements needed in order to more adequately measure
Latino health include providing culturally competent information and access to public health research,
[FN46][FN46] which is related to the problem of under-representation of Latinos in the public health profession.
[FN47][FN47]

The landmark Mexican American Prevalence and Services Study (MAPSS), which interviewed 4,000 Mexican
Americans, found that alcohol and drug abuse was twice as high among individuals born in the U.S. than those who
emigrated from Mexico. [FN48][FN48] It also found that substance abuse among Mexican Americans increased
over time spent in the U.S. [FN49][FN49] In 1999, when the U.S. Surgeon General reported the rate of alcohol
consumption among Latinos as comparable to non-Hispanic Whites, he also noted that substance abuse rates are

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higher among individuals of Mexican ancestry born in the U.S. than those born in Mexico. [FN50][FN50] Similarly,
in 1988 the U.S. Surgeon General reported that various studies found smoking among Latinos in the U.S. to be
positively associated with acculturation. [FN51][FN51] Another study found that among smokers, “more
acculturated Latinos had higher levels of addiction and lower *77 levels of self-sufficiency than did less acculturated
Latinos.” [FN52][FN52] A different study found that Latinas with an English or bilingual orientation were much
less likely than Latinas with a Spanish-language orientation “to acknowledge the dangers of smoking the occasional
cigarette or recognize the difficulty in quitting.” [FN53][FN53]

In sum, both alcohol and tobacco abuse seem to increase as Latino immigrants become acculturated to the
U.S. The acculturation experience is complex, and Latino public health experts are just beginning to unravel the
relationship between various U.S. cultural factors, such as targeted advertising, and increasing tobacco and alcohol
abuse. Experts emphasize that it is not the immigration experience per se, but a complex set of factors, including
race/ethnic discrimination, that leads to Latino immigrants having less access to heath care and social supports,
extreme health disparities, and increasing tobacco and alcohol abuse. [FN54][FN54]

C. Alcohol and Tobacco Advertising Targeting Latinos

Mounting evidence demonstrates that alcohol and tobacco companies target Latinos through their advertising
and marketing, and that Latinos face higher rates of exposure to alcohol and tobacco advertising. [FN55][FN55]
According to one expert, “tobacco and alcohol industries have dubbed the Latino community as ‘the hottest
emerging market,”’ and are redoubling their already disproportionate marketing campaigns. [FN56][FN56] The
content of media campaigns indicate that advertisers may also be exploiting negative, stereotypical images of Latino
culture as a marketing tool to promote increased beer drinking, [FN57][FN57] with little concern for the
consequences of alcohol abuse in the Latino community. [FN58][FN58] As this section will discuss, alcohol and
tobacco companies are targeting the Latino community through their advertising in ways that are extremely
troublesome from a Latino civil rights perspective.

In 2004, just before Cinco de Mayo, Tecate, a Mexican beer company *78 owned by Labatt, USA, and Clear
Channel, a U.S. media conglomerate, posted a controversial billboard in predominately Hispanic neighborhoods.
The billboard showed a Tecate beer bottle suggestively reclining, stating: “Finally, a cold Latina.” The billboard was
posted near the Robert F. Kennedy Charter High School in Albuquerque, New Mexico, where Hispanic students
protested its offensiveness to their cultural heritage and to Latinas. The high school students called the company,
enlisted the aid of Latino civil rights leaders at the University of New Mexico, and soon after, the company removed
the billboards. [FN59][FN59] The controversy sparked an outcry by Latina leaders [FN60][FN60] and led to
increased awareness of such advertising tactics by beer companies. Professor Marilyn Aguirre-Molina of Columbia
University and Zelenne A. Cárdenas, Director of Prevention Programs at Social Model Recover Systems, wrote:

The advertisement, displayed on billboards in Latino communities across the country, signals an
unprecedented low for the beer industry, which has long exploited images of nearly naked Latin women
(Latinas) to sell its products. The billboards unabashedly suggest that Latinas as a group are promiscuous
(i.e. “hot”) and hyper sexed. It is chilling in its blatant use of a stereotype that dehumanizes each of us, from
Dominican schoolgirls to Mexican American grandmothers, but it is particularly damaging to our youth, who
are more exposed to alcohol advertisements than adults or children of other ethnic groups. [FN61][FN61]
Cárdenas and Aguirre-Molina also discussed the social consequences for the Latino community:

The billboards are sparking outrage in our communities because they reflect an even broader problem:
the aggressive targeting of Latino youth by the beer industry--with dire consequences for our young
people. A recent report by The National Academies, Reducing Underage Drinking: A Collective
Responsibility, points out that Latino girls are initiating alcohol use at a younger age than any other group in
the country. And the younger a person begins heavy drinking, the more likely they are to become addicted to
alcohol, as well as to suffer possible permanent learning deficits. Furthermore, alcohol use contributes to

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three major causes of death among Hispanic youth: unintentional injuries (including car crashes), homicide
and suicide. Other research has shown that America's Latino communities have five times as many alcohol
advertisements as predominantly white communities. And when *79 alcohol advertisements depict Latinas
as sexual objects, there are additional consequences. One study shows that the concentration of such ads leads
to violence against Latinas between the ages of 15 and 18. [FN62][FN62]
The potential legal consequences of this case will be analyzed in part A of Section II. The offensive 2004
Tecate billboard will be analyzed as a model case, but it is not the only questionable incident of targeted
marketing. Currently, Cinco de Mayo and virtually every other Latino holiday, has become the subject of beer
companies sponsoring festivals and related advertising campaigns. For example, in 2005, Beerwatch magazine
reported that the industry countered a lull by sponsoring events and comprehensive advertising campaigns around
various Latin American independence festivals, encouraging Latinos to “Celebrate Your Homeland.”
[FN63][FN63] According to the September 2005 issue, “[w]ith the Hispanic population being the largest and fastest-
growing ethnic group in the country, Miller has ramped up its support of Fiestas Patrias this year” [FN64][FN64]
and the “Coors Brewing Co., meanwhile, will sponsor a Hispanic heritage event at the White House on September
15th.” [FN65][FN65] A Miller executive added that her company will also sponsor and advertise Miller beer in
their new program for Las Posadas, a Mexican pre-Christmas celebration. [FN66][FN66]

The number of advertisements is also at issue. On October 26, 2005, the Center for Alcohol Marketing and
Youth at Georgetown University released a report finding that alcohol advertisers spent more than $18 million in
2002 on advertisements aired during 12 of the 15 television programs most popular among Latino youth.
[FN67][FN67] The Center also found that Latino youth saw nearly 25 percent more magazine beer ads than other
children. The over-exposure to Latino youth is caused in part by dramatically increasing beer advertising targeting
Latinos. In 2004, SABMiller won a contract to spend $100 million over three years on Univisión Communications,
and in October of 2005, the Wall Street Journal reported that Anheuser Busch is increasing its ad spending in Latino
media by 66 percent in order to compete for this young, lucrative market. [FN68][FN68]

On November 3, 2005, the Sixth Annual Latin Grammy Awards aired for the first time in Spanish on Univisión,
[FN69][FN69] along with frequent beer ads that did not include the same consumer warnings as similar ads on
English-language television. [FN70][FN70] For example, Miller and Budweiser commercials aired on English-
language television during the same week included the warning, “Drink Responsibly,” but this *80 warning did not
appear in any of the Miller and Budweiser commercials aired in Spanish during the Latin Grammies. [FN71][FN71]
One beer ad aired during the Latin Grammies showed young Latinos playing in a garage band and a father figure
bringing the young musicians a six-pack of beer. [FN72][FN72] The content of this youth-oriented beer ad would
seem to violate the legal prohibition against marketing alcohol to youth, who are, after all, under the legal drinking
age. As previously mentioned, the average age of any Spanish-language viewing audience is more than 14 years
younger than the average age of English-language audiences. [FN73][FN73] The airing of the Grammies in Spanish,
as well as the featured music of punk rock and reggaetón, indicates that the audience was relatively young.
[FN74][FN74] As will be discussed below, according to the current regulatory scheme, beer ads during television
programs directed at such audiences should be aired less frequently, if at all. [FN75][FN75] Yet, beer companies are
deliberately targeting the young Latino population.

Tobacco companies have also targeted Latinos through television. Cigarettes are much more prevalent on
Spanish-language television than on mainstream stations. For example, in the opening scenes of some popular
Spanish-language television soap operas, known as telenovelas, the main characters are portrayed smoking.
[FN76][FN76] Federal law prohibits advertising tobacco on television, so cigarettes are not directly advertised on
Spanish-language television. [FN77][FN77] However, images in programming send signals that smoking is
acceptable and even glamorous to viewers of Spanish-language television. Such images are not part of “mainstream”
English-language American television programming. Tobacco companies also make substantial contributions to
Latino non-profit organizations, but they spend more money on ads talking about the financial support, than the
actual amount of financial support they give. [FN78][FN78]

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Cigarettes are also marketed through print media, billboards, in-store advertising, and at clubs and events in
ways that may be improperly targeting Latino youth. [FN79][FN79] As will be discussed in part B of Section II,
anti-smoking activists successfully challenged youth-oriented tobacco advertising in the late 1990's through
litigation. [FN80][FN80] Nevertheless, as the Legacy Foundation has reported, advertising that targets Latinos
continues to heavily impact the growing Latino youth. [FN81][FN81] *81 Furthermore, experts have found that
tobacco is advertised more in states with the highest Latino populations. [FN82][FN82] Not surprisingly, recent
studies have found that tobacco use among Latino youth has increased since the late 1990's when the tobacco
industry agreed to cease and desist from targeting youth as part of legally-enforceable settlements. [FN83][FN83]
Similarly, other studies have found that tobacco use increases the longer Latino immigrants are in the U.S.
[FN84][FN84] The increase of tobacco use among Latino youth and immigrants could very well be a product of
tobacco advertising targeting the Latino community with disregard for the health consequences.

There is also concern about cigarette ads that target Latinas. A recent surge of advertisements glamorizing
cigarettes has been directed at Latinas. In 1999-2000, Philip Morris ran a magazine ad campaign for Virginia Slims
featuring Latinas and other ethnic women, which used the slogan “Find Your Voice,” and the ad was withdrawn
after being criticized for targeting ethnic women. [FN85][FN85] As was reported at the time, “according to tobacco-
control activists, recent slow profits and damaging lawsuits against big tobacco in the United States have resulted in
an onslaught of marketing dollars directed at these two untapped markets: women overseas, particularly women
living in developing nations, and minority women in the United States.” [FN86][FN86] Although the “Find Your
Voice” campaign ended, tobacco companies continue to consider Latinas an “untapped market.” In 2005, R.J.
Reynolds unveiled a new KoolMIX campaign, with multicultural images and slogans intended to appeal to ethnic
minorities, such as “It's about pursuing your ambitions and staying connected to your roots” featured in Latina
magazine and Cosmopolitan En Español. [FN87][FN87] Patricia Sosa, Vice President of Campaign for Tobacco-
Free Kids, believes that the campaign may be unlawfully targeting Latina girls, and commented, “It is outrageous
that the tobacco companies are exploiting the aspirations, culture and images of the Latino community to market
deadly and addictive tobacco products to our children.” [FN88][FN88]

Statistics show that only 13.8 of Latinas smoke, which is less than women in other ethnic groups.
[FN89][FN89] Latinas also smoke less than their male Latino counterparts, [FN90][FN90] but other statistics are
disconcerting. For example, 21.7 percent of Puerto Rican women smoke. [FN91][FN91] Puerto Rican women
compose a significant subgroup *82 of the U.S. Latino population. [FN92][FN92] Also, an alarming number of
Latina girls smoke. In 1999, 70.4 percent of Latinas in grades 9-12 reported that they smoked cigarettes, compared
to 69.4 percent of White girls and 69.0 percent of African American girls. [FN93][FN93]

Longitudinal studies have demonstrated the correlation between advertising and abuse of alcohol and tobacco
among Latino youth. [FN94][FN94] Other studies have shown that targeted alcohol and tobacco advertising may be
exploiting Latino cultural images and using negative stereotypes in their marketing of addictive behaviors and
substances. [FN95][FN95] Even if cultural references and negative stereotypes were not used in alcohol and tobacco
advertising, the act of targeting the Latino community leads to predictable health damages that are troubling from a
Latino civil rights perspective, as the Latino community has not been fully included in tobacco control measures. As
will be discussed in part B of Section II, the harm caused by tobacco advertising to the Latino community is
significant, and the Latino community is entitled to the same respect for their rights to health as the rest of America.

D. Impact of Alcohol and Tobacco Advertising Considering Health Disparities

The impact of alcohol and tobacco advertising on the Latino community must be analyzed in the context of
discrimination in the nation's health care system. Discrimination includes “differential delivery of health care
services based on race, ethnicity, and gender; inability to access health care because of lack of financial resources,
culturally incompetent providers, language barriers, and the unavailability of services; and exclusion of minority and
female populations from health-related research.” [FN96][FN96] In 1999, the U.S. Civil Rights Commission
reported that discrimination in the health care system has resulted in “striking disparities in health status between

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minorities and non-minorities,” with a harsh impact on the Latino community. [FN97][FN97] Following the 1999
Civil Rights Commission Report, the Office of Minority Health (OMH) of the Centers for Disease Control (CDC)
conducted two national studies on health disparities, which found that Latinos continue to experience the worst
health disparities and that such health disparities are widening. [FN98][FN98] According to OMH, in 2000 and
2001, “Hispanics received lower quality care than non-Hispanic Whites for half of quality measures and had worse
access to care than non-Hispanic whites for *83 about 90 percent of access measures.” [FN99][FN99]
Race/ethnicity was the controlling factor for health disparities, as Hispanics at all income levels received worse
health care than non-Hispanic Whites. Furthermore, the National Council of La Raza (NCLR) and the California
State University at Long Beach just issued a report demonstrating extreme health disparities for the Latino
community with regard to mental health. [FN100][FN100] According to the report, high levels of depression due to
social stresses are exacerbating alcohol abuse. [FN101][FN101] Among Latinos, the NCLR report documented an
acute lack of access to preventive mental health services and treatment for commonly-associated mental health
disorders. [FN102][FN102] As noted above, alcohol and tobacco are by far the most abused substances in the U.S.
and cause the greatest number of preventable deaths. [FN103][FN103]

High poverty rates, along with the fact that Latino household income is only one-tenth that of non-Hispanic
White households, have also led to severe health disparities. [FN104][FN104] According to the U.S. Surgeon
General, poverty is directly related to higher rates of smoking. Thirty-three percent of persons under the poverty
level smoke, compared to 24.6 percent of those above the poverty level. [FN105][FN105] Therefore, since Latinos
experience higher poverty levels, this is yet another indicator that health damages due to smoking disparately impact
Latinos. Latinos also experience the highest high school dropout rate of any ethnic group at over 21 percent, three
times the dropout rate of non-Hispanic Whites. [FN106][FN106] Less education translates to less access to
preventive information, as well as other health disparities. [FN107][FN107] Certainly, the industry is aware of the
demographics and disparities of the Latino community. As early as 1980, before Latinos became the largest ethnic
minority in the U.S., an internal Brown & Williamson Tobacco (BWT) memo advised that: “Poorly educated,
downscale economically. . . Hispanics may offer BWT a rather attractive opportunity.” [FN108][FN108]

For many Latinos with limited English proficiency, health disparities are exacerbated when federally funded
services are not provided in Spanish as required *84 by Executive Order 13166, issued in 2000 to ensure compliance
with Title VI of the Civil Rights Act. [FN109][FN109] For example, the Commonwealth Fund reported in 2003 that
nearly half of Spanish-speaking Latinos had difficulty communicating with their physicians. [FN110][FN110] As
the Civil Rights Commission reported in 1999, “lack of interpretive services ultimately results in inequities in
treatment and service utilization rates.” [FN111][FN111] The Commission also found that reforming structural
inequities must include language access and cultural competency, the lack of which are major factors producing
health disparities for Latinos, especially in the mental health field. [FN112][FN112] Furthermore, according to the
U.S. Departments of Health and Human Services (HHS), lack of interpretive services for LEP persons is not only
widespread, as U.S. courts have found, it is quite often the pretext for national origin discrimination.
[FN113][FN113]

The most recent reports by the HHS, OMH, and CDC, demonstrate that for Latinos, drastic disparities in access
to federally funded health programs continue today. [FN114][FN114] In addition, due to compounded
discrimination based on gender as well as race, Latina women have an even greater risk of experiencing health care
disparities and lack of access to federally funded health care programs. [FN115][FN115] Federally funded health
programs include alcohol and tobacco prevention programs, addiction treatment and smoking cessation programs, as
well as the health services needed due to damage caused by alcohol and tobacco. [FN116][FN116] Considering the
reported health disparities and lack of equal access to federally funded health care, Latinos who suffer from alcohol
and tobacco related illnesses are at a disadvantage.

Latino access to healthcare is also significantly limited by the 1996 federal immigration and welfare law
reforms embodied in the Personal Responsibility and Work Opportunity Reconciliation Act (PRWOR) and related
provisions of the Illegal Immigration Reform and Responsibility Act (IIRARA) that prohibit federally funded *85

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services to immigrants, except for the most essential emergency benefits. [FN117][FN117] Under the 1996 reforms,
all immigrants, even Legal Permanent Residents, are now excluded from most federally funded health programs.
[FN118][FN118] Because 52 percent of the nation's immigrants are Latinos, these reforms have a greater impact on
the Latino community's health compared to other groups. [FN119][FN119] The National Hispanic Leadership
Agenda (NHLA), a broad-based association of 40 national Latino groups, reported that “for immigrant families who
are low income, the current federal restrictions severely undermine access to health care and contribute to the
rampant level of uninsurance that plagues this nation's Latino population.” [FN120][FN120] U.S. Census data has
demonstrated the relationship between immigration status and lack of insurance, as more than half of Latinos are
uninsured, a quarter of which are children and 59 percent are immigrants. [FN121][FN121] Moreover, in a complete
policy turnabout since Hurricane Katrina, the Department of Homeland Security, which oversees the Federal
Emergency Management Agency (FEMA), has been conducting immigration enforcement actions against persons
seeking basic emergency services. [FN122][FN122] These harsh laws and policies severely restrict access to public
health benefits for many Latino families.

Arizona's Proposition 200, which was voted into law during the November 2004 election, exemplifies the post-
9/11 anti-immigrant backlash at the state level. Proposition 200 prohibits the provision of state services to
immigrants, and requires state officials to report undocumented immigrants who attempt to utilize state services,
including health services. [FN123][FN123] Proposition 200 is being challenged on constitutional grounds similar to
that of California's Proposition 187, which sparked Latino activism in that state and was later overturned in federal
court. [FN124][FN124] Yet, with *86 Proposition 200, anti-immigrant groups have taken advantage of 9/11 to push
their agenda, and versions of the Arizona anti-immigrant measure have been introduced in at least seven other states,
including California. [FN125][FN125] According to “Protect America Now,” copycat initiatives are being planned
in 24 states, all of which would severely limit immigrant access to health care and many other government services.
[FN126][FN126] Protect America Now is run by Numbers USA and other national anti-immigrant groups with ties
to organizations and individuals advocating white supremacy. [FN127][FN127] The current anti-immigrant backlash
is directed at all Latinos and is even affecting Puerto Ricans, whose access to government services is minimized by
stereotypical, racist presumptions that all Latinos are immigrants. [FN128][FN128]

In sum, anti-immigrant laws are highly relevant to the health of the Latino community, because many Latino
families are of “mixed status,” in which some members are citizens and others are not. Because citizen members
fear retaliation against non-citizen family members, citizen members do not seek medical attention. In effect, the
entire Latino family is denied access to health services. [FN129][FN129] At least 68 percent of the nation's Latino
community is impacted by restricting non-citizen access to public health benefits, as 40 percent of Latinos are
immigrants, and 28 percent are U.S. citizen children of immigrants whose parents may be blocked from accessing
services on their behalf. [FN130][FN130] In addition, spouses, parents, and other relatives of non-citizens hesitate to
seek public health services due to fear of the consequences arising from the rigid enforcement of immigration laws
for the entire family. [FN131][FN131] Even Latino families whose members are all citizens are impacted due to the
racial profiling that commonly occurs in immigration enforcement. [FN132][FN132] Anti-immigrant measures
cause entire Latino families and communities to have less access to health care, including education, prevention, and
addiction treatment, than non-Hispanic White and other nonimmigrant communities.

The effect of citizenship status on access to healthcare is just one example of how alcohol and tobacco use has a
more devastating impact on the Latino community as compared to other ethnic groups. Other factors include
discrimination in the federally funded health care system, less access to insurance, less access to quality providers,
less access to language and culturally competent services, and the compounded risk of these factors for Latinas and
youth. [FN133][FN133] This is related to what *87 NCLR recently reported as, “a distressing lack of Latinos
working as professional mental health providers,” with only one percent of American Psychological Association
members self-identifying as Latinos. [FN134][FN134] Moreover, as has been reported widely, nearly one-third of
Latinos are uninsured, compared to 11.3 percent of non-Hispanic Whites and 19.7 percent of African Americans.
[FN135][FN135] As will be discussed below, corporations, the media, and government should be aware of the
severe health care disparities experienced by the Latino community, and the law may imply a duty to prevent and/or

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
16 BERKLARLJ 71 Page 9

16 Berkeley La Raza L.J. 71

remedy the damage done by alcohol and tobacco advertising that unfairly targets Latinos.

II.

Legal Analysis

A complex set of federal statutes, regulations, and jurisprudence applies to alcohol and tobacco advertising. To
date, the health impact of alcohol and tobacco advertising as a civil rights issue has not been the subject of direct
federal regulation. In the U.S. legal system, much of civil rights law is limited in its applicability to government
action, rather than private entities. Since private corporations fund alcohol and tobacco advertising, protections
afforded by civil rights law are somewhat limited, unless their discriminatory actions impact American public life.
[FN136][FN136] The First Amendment, which guarantees free speech in advertising, further limits civil rights
protections. [FN137][FN137] Despite these challenges, there are ways in which civil rights law can be used to
confront the aggressive alcohol and tobacco advertising being directed at the Latino community, which will be
discussed below. In addition to the remedies of civil right law per se, a Latino civil rights perspective should be
utilized to expand other legal remedies to protect Latino consumer rights and the health of the Latino community.

In order to cover both alcohol and tobacco issues, Section A will analyze potential statutory remedies for
alcohol-related damages to Latino communities and Section B will analyze potential litigation strategies for tobacco-
related damages. However, the analyses are by no means mutually exclusive, and can be applied to targeted
marketing of either substance. Note that because courts have consistently held that there is no constitutional right to
smoke under the Due Process or the Equal Protection clause, [FN138][FN138] the analysis below will focus on the
remaining valid legal questions.

*88 A. Potential Statutory Remedies

This section will focus on potential legal remedies for the damage caused by alcohol advertising that targets the
Latino community. While these statutory remedies may also be applicable to tobacco-related legal issues, the main
focus will remain on statutory remedies for alcohol companies targeting Latinos through aggressive, legally and
ethically questionable advertising campaigns. The offensive Tecate billboard posted during Cinco de Mayo in 2005,
the recent Miller beer advertising campaign and targeted advertisements on Spanish-language television will be
discussed as case examples. Part 1 will analyze federal civil rights legislation. Part 2 will analyze federal consumer
protection law. Part 3 will analyze state regulation and part 4 will discuss possible new federal legislation.

1. The 1964 Civil Rights Act

The 1964 Civil Rights Act prohibits not only intentional discrimination, but also discriminatory impact. Section
2000d of Title VI mandates that “no person in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” [FN139][FN139] Federal courts have repeatedly held
that the language of Section 2000d of Title VI demonstrates that Congress intended that Title VI be used to establish
a disparate impact claim. [FN140][FN140] The Department of Justice (DOJ) issued rules implementing Title VI that
clarify the “generality of the prohibition” in Section 2000d. [FN141][FN141] The rules mandate that recipients of
federal funding “may not, directly or through contractual arrangements, utilize criteria or methods of administration
which have the effect of subjugating individuals to discrimination because of their race, color, or national origin, or
have the effect of defeating or substantially impairing accomplishments of the objectives of the program as respects
individuals of a particular race, color, or national origin.” [FN142][FN142] Title VI applies to every federally
funded health program, as well as any other federally funded program relevant to alcohol and tobacco.
[FN143][FN143] As will be discussed below, the anti-discrimination requirements in Title VI are indirectly
applicable to the legal issue of whether and how alcohol and tobacco companies may be held accountable for

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.