A local chef is suing Virginia, arguing that the Commonwealth's ban on happy hour advertising is a violation of his First Amendment right to free speech.
Feel free to raise your glass for this one. Chef Geoff Tracy deserves a toast.
Geoff Tracy owns Geoff Tracy's in Tysons Corner. Tracy has long complained about a Virginia law that makes it illegal for restaurants and bars to advertise happy hour pricing outside their premises. They are free to advertise the low prices inside, but that is little help for restaurant and bar owners trying to lure people into their establishments.
Tracy and a few other restaurant owners pushed for the Virginia legislature to change the state's outdated happy hour laws. The bill that passed, and was ultimately signed into law, now allows Virginia restaurants and bars to publicly advertise "happy hour" and "drink specials." Those phrases are in quotations because that is technically the only terminology that bars and restaurants can use in their advertising.
It is against the law for a bar to actually advertise what the nightly and weekly specials are. If Tracy wants to advertise "Wednesday Wine Night" where bottles of wine are half-off, he is only allowed to advertise it as a "drink special." Any other terminology used in the ad would result in a $500 fine and a week-long suspension of his liquor license.
“What I find to be most absurd is that I can’t tell you what the price of a beer is,” Tracy said in an interview with a local paper.
This Virginia statute is now being challenged in court. Tracy is being aided by the Pacific Legal Foundation, a Libertarian leaning law firm. Their lawsuit argues that it is unconstitutional for the State of Virginia to limit how restaurants and bars can advertise legal promotions.
That is the crux of their argument: happy hour is legal in Virginia. While it may seem like a foreign concept, there are actually parts of the country that prohibit happy hour all together. In Boston, Massachusetts, happy hours are prohibited. That city's statute stems from a decade-old attempt to combat drunk driving. Restaurants and bars inside the city limits are barred from having happy hours.
In cases where happy hours are prohibited, then it makes complete sense to also prohibit happy hour advertisements. But in Virginia, restaurants and bars are allowed to discount food and drinks at certain times of the day. For example, bars and restaurants in Virginia are legally allowed to offer two-for-one drink specials. However, it is currently illegal for these establishments to advertise a two-for-one special. Tracy's argument is that Virginia's ban on happy hour advertising violates his First Amendment right to free speech. If it is legal for a restaurant or bar to offer a discount, then the lawsuit argues it must also be legal to tell the community about the discounts.
Interestingly enough, it was a Virginia case that originally led the Supreme Court to extend First Amendment protections to corporate advertising. In the 1970s, Virginia had a law on the books that made it a felony for any licensed pharmacist to "publish, advertise or promote, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms ... for any drugs which may be dispensed only by prescription." The Supreme Court ruled in 1978 in the case Virginia Pharmacy Board v. Virginia Consumer Council that this ban on price advertising was unconstitutional.
When Virginia's happy hour ban was challenged in 2015, anti-substance abuse organizations rallied in defense of the statute. They successfully convinced the legislature to leave most of the advertising ban intact. They argued that advertisements promoting drinking was dangerous to society, especially if those advertisements encouraged more drinking.
Geoff Tracy is cautiously optimistic that Virginia will settle and scrap the law, however if the state does choose to go to trial, it is difficult to imagine the government succeeding.