As I pointed out here, we have devoted a great deal of time in communicating and talking with brewers all over the country to accomplish that purpose, but when you come to the suggestion that you stop opening the bottle and pouring into the glass, you are suggesting that the industry give up one of the most important techniques of advertising because, if you have noticed it yourself, you could not sell a wrapped up package. You unwrap a package.

Beer is wrapped up. It is wrapped up in a bottle. Most beer is wrapped up in an amber bottle. The technique and the art of advertising is to sell your product and the way you do it is to pour it into a glass and extol its virtues. We say that to deny us the right to use the techniques that have been developed over the years in the art and science of advertising is to discriminate against our industry in violation of the due process clause of the fifth amendment which prohibits discrimination among industries.

This brings us to our extended legal opinion which we desire to submit for the record as a part of our testimony.

Before concluding, however, we should like to read to you from pages 8, 9, and 12 of our legal opinion some additional and enlightening information as to the origin and purpose of the 21st amendment.

We should also like to read from pages 18 and 19, Mr. Eisenhower's views on the scope of the 21st amendment. But I am not going to read that. I am merely going to summarize that. This is the first time we have brought this historical information to the attention of any congressional committee.

The 21st amendment is a restatement of the repeal plank in the Democratic platform of 1932. The interpretation which the attorneys for the drys give to the 21st amendment; namely, that the Federal Government now has concurrent jurisdiction under the 21st amendment to assist the States in enforcing their laws, is a restatement of the repeal plank in the Republican platform of 1932, which was bitterly contested in the Republican Convention and almost defeated.

In 1936, Congress passed an act to enforce the 21st amendment. That act was a legislative interpretation of the 21st amendment. The committee reports of the House Judiciary Committee and the Senate Judiciary Committee are virtual restatements of the repeal plank of the Democratic platform of 1932.

During the campaign preceding the presidential election of 1952, Mr. Eisenhower's views on the subject of Federal regulation of alcoholic beverage industry were solicited by the legislative representative of the Woman's Christian Temperance Union. The legislative representative's wire to Mr. Eisenhower was not made public, but we cannot escape the conclusion from the nature of Mr. Eisenhower's reply that her wire solicited his views on Federal legislation such as this bill.

Mr. Arthur H. Vandenberg, executive assistant to General Eisenhower, replied on October 31, 1952, and this was published in the Union Signal, official organ of the WCTU, November 22, 1952, in relevant part as follows:

As you no doubt know, the 21st amendment to the Constitution of the United States reserves to each State the plenary power to regulate or to prohibit the use of intoxicants within its borders. General Eisenhower strongly approves of this absolute power to deal with alcoholic beverages which has been given to the people of the various States. It is his deep conviction that since each

State has its own problems regarding this subject, its people should be free to solve these problems without interference.

The interference to which Mr. Eisenhower alludes can only come from the Federal Government.

Evidently, therefore, Mr. Eisenhower is of the opinion, or he was at that time, that the 21st amendment deprives the Federal Government of jurisdiction to regulate the manufacture and sale of intoxicating liquors.

Now, this brings me to the conclusion of my testimony and I thank you for your time and attention.

(The formal statement submitted by Mr. Hester is as follows:)

STATEMENT OF CLINTON M. HESTER, WASHINGTON COUNSEL, UNITED STATES BREWERS FOUNDATION

Mr. Chairman and members of the House Interstate Commerce Committee, my name is Clinton M. Hester. I am an attorney with offices in the Shoreham Building, this city. I appear here today on behalf of the United States Brewers Foundation, New York City, in opposition to the Siler bill, H. R. 4627. Now in its 94th year, the foundation, for which I have been Washington counsel for many years, is the oldest trade association in the United States in continuous operation since its establishment. Its members produce in excess of 85 percent of the beer manufactured in this country.

Sitting at my left is Mr. Edward V. Lahey, titular head of the American brewing industry, the ninth largest business in the United States. Mr. Lahey is president and chairman of the board of directors of the United States Brewers Foundation. On my right is Mr. J. A. Crowder, of our law firm, who has assisted me in the preparation of our legal opinion.

Today marks our 10th appearance before this committee and the Senate Interstate Commerce Committee during recent years in opposition to this or a similar bill. During each of these hearings, we have discussed at length the lack of merits of the bill and its unconstitutionality. The time of this committee is limited and there are many other witnesses here today who wish to be heard in opposition to this bill. Accordingly, we will, with an exception or two, limit our testimony to the events which have transpired since the hearings held by this committee in 1954.

We have prepared a new and extended legal opinion which not only restates, but strengthens, our previous legal opinion to such an extent that we are now ever more confident than even before that this bill is clearly unconstitutional. The bill violates the free speech and free press guaranties of the 1st amendment, the due process clause of the 5th amendment which prohibits discrimination among industries, and violates the 21st amendment which returned absolute control of the manufacture and sale of intoxicating liquors to the States to the exclusion of the Federal Government.

Our legal opinion contains some additional and enlightening information on the origin and purpose of the 21st amendment. It also quotes the views of Mr. Eisenhower on the scope of the 21st amendment.

In our previous testimony, we pointed out that this bill not only discriminates against a legitimate industry, but attempts to impose prohibition by banning the advertising of a legitimate product; it is part and parcel of a campaign to impose prohibition again upon the people of the United States.

The bill, if enacted, would impose prohibition upon wet States like, for example, Maryland and New York. Although the States of Maryland and New York permit beer advertising on radio and television and in newspapers and magazines, the plain terms of the bill would interfere with these States by requiring them to desist in permitting beer advertising.

To illustrate, Baltimore radio and television stations would no longer be permitted to broadcast and telecast the baseball games of the Baltimore Orioles and the football games of the Baltimore Colts because the broadcasts would cross State lines.

The bill is aimed primarily at the brewing industry and, if enacted, would reduce beer sales 50 percent. The prohibitionists want prohibition. They are not interested in moderation. They do not wish to prohibit beer advertising simply because they object to the advertising per se. The logical and only real reason

that they are sponsoring and supporting this bill is because they correctly believe that without interstate advertising, beer sales volume will diminish to the point where the brewing industry will eventually be destroyed.

Manifestly, this bill would, in time, destroy the brewing industry because no brewer could suffer a 50 percent loss in his sales and remain in business.

Today, the brewing industry is pouring revenue at the rate of well over $2 billion a year into the national economy, distributed along these lines: $980 million in combined Federal, State, and local taxes and license fees; $350 million in wages and salaries (exclusive of payrolls of distributors, retailers, and allied industries); more than $275 million for agricultural products; $200 million for cans and bottles; and several hundred million dollars additionally for other supplies and services that include construction, machinery and equipment, crowns, cartons and cases, motor trucks and lift trucks, transportation, etc. The brewing industry currently consumes every year more than 4 billion pounds of farm products such as corn, barley, rice, and hops.

In addition, brewers sponsor both national and local radio and television programs, such as baseball and football games, boxing matches, newscasts, musicals, dramas, variety shows, and symphony orchestras, among others. It was estimated that in a recent year 65 million people viewed the telecast of a national boxing contest sponsored by a brewer. Millions more listened to the radio broadcast of the same event sponsored by the same brewer. This is not surprising when one considers that beer is consumed in the homes of two-thirds of the families in the United States.

The alcoholic beverage industry, consisting of the distillers, vintners, and brewers, is one of the few industries required to pay excise taxes to the support of the Federal and State Governments. This industry pays annually to these governments in excise taxes alone a total of approximately $2.7 billion and to the several States about $750 million.

It is conservatively estimated that the enactment of this bill would cost the Federal Government in alcoholic beverage excise taxes approximately $1 billion annually and the States $250 million annually; and cost these governments hunddreds of millions more in corporate and individual income taxes.

All this too, at a time when our Federal and State indebtedness is at an all-time high; when we have so much need for moneys for our national defense and security, and at a time, too, when our taxes are almost at a confiscatory level.

And likewise at a time when the President has just recommended to the Congress, and the Democratic and Republican leaders of the House have agreed to accept his recommendation that the emergency excise taxes on alcoholic beverages due to expire April 1, 1956, be continued for another year, to avoid a loss in excise tax revenue to the United States Treasury of upwards of $300 million in the next year.

One would think that the prohibitionists would desire to increase the consumption of beer in the interest of moderation, like Thomas Jefferson and other distinguished Americans. Jefferson, it will be recalled, sent to Europe and procured the best brewmasters in Europe and brought them to the United States to teach the art of brewing to the people of the several States in the interest of moderation.

Jefferson regarded the manufacture and sale of beer of such great importance to the people of the United States that if he were here today, he would certainly favor the use of television, radio, newspaper, and magazine advertising to encourage the consumption of beer.

In 1954, a measure similar to this bill was voted on by the people of the State of Washington. This measure, sponsored by the drys, would have prohibited the alcoholic beverage industry from using radio and television from 8 o'clock in the morning until 10 o'clock in the evening. At the election in November of that year, the drys suffered one of the worst defeats in the history of the prohibition movement in the United States.

The brewing industry used some of its commercial time on radio and television to inform the people of the State of Washington of the sponsorship, the purpose, and effect of the bill. The result was, the measure was defeated by the people in every single one of the 39 counties in the State of Washington. Statewide the count was 3 to 1 and in many counties the vote was 4 to 1 against the measure. The prohibitionists lost even in the most agricultural and rural counties where prohibition sentiment is the strongest.

In 1955, the drys suffered a similar overwhelming defeat in North Dakota, the home State of Senator Langer, author of the companion to the Siler bill. A bill

aimed at eliminating beer advertising on radio and television, which had previously never been given any consideration, suddenly overnight passed the North Dakota House. The farmers of North Dakota protested so vigorously that the Senate soon killed the bill. The farmers not only realized that they would be deprived of the radio and television programs sponsored by brewers but also, inasmuch as brewers are among their best customers, the farmers would be adversely affected by decreasing beer sales which were certain to follow if the bill were enacted.

In this connection, it is certainly significant that no State prohibits or ever has prohibited brewers from using radio and television and newspapers and magazines to advertise their products.

One would think that these unsuccessful efforts to curtail the liberties of the people would be an object lesson to the prohibitionists, and that they would question their own judgment as did Benjamin Franklin just before the vote was taken on the final draft of the Constitution in the Constitutional Convention.

On the final day of the Convention, September 17, 1787, only 39 of the 55 delegates chosen by 12 of the Colonies to attend the Convention, were in attendance. Among the 39 were many who were opposed to various provisions of the draft of the Constitution. Some were even doubtful as to whether they would sign the document. Benjamin Franklin, 81 years of age, elder statesman, and considered to be the wisest man of the era, sensing the situation, appealed to the delegates to sign the draft of the Constitution.

Addressing the presiding officer, George Washington, Mr. Franklin spoke in part as follows:

"Mr. President, I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. For, having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions, even on important subjects which I once thought right but found to be otherwise. It is, therefore, that the older I grow the more apt I am to doubt my own judgment of others * * * "On the whole, Mr. President, I cannot help expressing a wish that every member of the Convention, who may still have objections to it, would with me on this occasion, doubt a little of his own infallibility and, to make manifest our unanimity, put his name to this instrument."

After a moment of silence, a murmur of approval arose in the hall. Then the delegates commenced signing the great document and continued until all 39 of them had affixed their signatures.

The brewing industry has heeded Franklin's advice but the prohibitionists have not done so. The brewers have also heeded your advice to be vigilant and constantly to review their advertising to keep it in good taste.

Your desks are now piled high with letters from well intentioned people throughout the United States who have been prompted to write you at the behest of professional prohibition leaders. What a wonderful opportunity this committee will have, after the conclusion of these hearings, to give some advice to the prohibitionists, to suggest to them that they should direct their efforts toward moderation raher than prohibition. It would certainly be a boon to our country if you replied to their letters in the vein that this bill is a prohibition bill, that our country does not again want the crime and corruption of prohibition, and that they should direct their efforts toward moderation rather than prohibition.

In the past, some Members of Congress have criticized some of the advertising of the brewing industry and have suggested that brewers should eliminate drinking scenes from their television commercials. It was also suggested that our commercials, along with those of numerous other products, were too frequent, irritating, improperly spaced and, on occasion, interfered with the program. In its report (House Rept. No. 2670) on the Bryson bill in 1954, the House Interstate Commerce Committee said in part:

"In this connection, the committee takes cognizance of the fact that the distilling industry has adopted a policy of refraining from advertising its products over radio and television. This fact creates the thought that consideration could profitably be given by the beer and wine industries to the possibility of eliminating or curtailing their advertising over radio and television.

"The committee furthermore takes cognizance of the fact that the television code specifically prohibits the advertising of hard liquors on television while the code does permit the advertising of beer and wine without any restrictions. The committee, therefore, raises the question whether radio and television broadcasters should not also adopt specific policies with regard to the advertising of 74186-56-23

beer and wine products with a view to eliminating or curtailing such advertising. The advertising of alcoholic beverages on television is not in good taste if such advertisement includes a scene of a family or any person drinking, serving, or preparing drinks, or contains any representation primarily appealing to children." The distilling industry has refrained from advertising on radio and television. They may have had some good reasons for not employing these media. However, the distillers do have a constitutional right to advertise on radio and television if they so desire.

The brewing industry, on the other hand, has no reason for not advertising on the air. To the contrary, the experience of the brewing industry in the States of Washington and North Dakota to which we have previously alluded, indicates that the American people are anxious to continue to enjoy the fine programs which brewers bring to them.

What greater endorsement of beer advertising is needed than the resounding defeat of Siler-like measures in Washington and North Dakota and the fact that beer is served in two-thirds of the homes in the United States. Rather than indicating any need to eliminate or curtail beer advertising on radio and television, these facts point to the ever-increasing desire on the part of Americans for more brewer-sponsored programs.

It has never been the practice of the brewing industry or individual brewers to use family scenes in their advertising. Only adults are portrayed and a family scene with children is never employed.

While we disagree most respectfully with your statement that showing a person drinking beer is not in good taste, the brewing industry has, nevertheless, given up using this important advertising technique. However, if the brewing industry were to give up portraying the pouring and serving of beer, in addition to portraying the consumption of beer, they would be giving up almost all the tools and techniques of advertising at their disposal.

If brewers were selling bottles, they might hold up a bottle and talk about it. But since they are selling beer which is packaged in a bottle or can, they must show the product by "unwrapping" the package and removing the contents by pouring the beer "unwrapped" into a glass. Almost all other products are advertised in a similar manner; that is, by an actual demonstration including unwrapping, and then using.

For example, the announcer, while extolling the virtues of a brand of cigarettes, opens the package, puts a cigarette in his mouth, lights it, and then takes a few puffs. The razor blade manufacturer has the announcer open up the razor, take a blade from a dispenser, place it in the razor, then shave. If these two industries were to forego that part of their commercials comparable to the drinking of beer, the lighting and smoking scene would end as would the scene portraying a man shaving. If they were to give up the portion of the commercials which might be compared to pouring and serving, the cigarette company would no longer open the package and remove a cigarette or offer it to someone else. The razor-blade manufacturer would have to refrain from opening a package of blades and placing a blade in a razor.

There is not, and never has been, a beer commercial or any beer advertising in the United States designed to appeal to children. If you could find any brewer in the United States who desired to advertise in such a manner as to appeal to children, he still would not do so as it would be a waste of money.

Every advertiser naturally advertises for the purpose of selling his product and to do so, employs commercials that are easily remembered so that the name of his product will remain in the mind of the listener. He frequently uses tuneful, catchy jingles and songs. Not so long ago, I found that my favorite song, The Yellow Rose of Texas, had been turned into an automobile commercial. Such commercials are used by all advertisers and are not peculiar to the brewing industry. Therefore, a good catchy tune designed to impress upon adults the merits of a particular beer or other product, may very well appeal to the musical instincts of children. In fact, my grandchildren enjoy singing them. While they have never cried for beer or any of the other adult products they see and hear advertised on television, it is the responsibility of their parents to see that they do not touch razor blades, cigarettes, matches, coffee, tea, and other adult products which they see advertised.

Just as children are not allowed to drive automobiles, they are not by law permitted to buy beer or cigarettes. While they are prohibited from driving automobiles until they have attained a certain age, nevertheless there are many commercials sponsored by automobile manufacturers which appeal to children just as there are the cigarette and razor blade commercials which also appeal