Can we accept underwriting from beer, wine and tobacco companies?

PBS guidelines prohibit underwriting by entities engaged solely in the manufacture or marketing of distilled spirits.  Beer and wine are not “distilled spirits” as defined by federal law, and PBS has accepted funding by companies that make and sell both beer and wine.  (There is no federal statute that requires a “distilled spirits” prohibition for public broadcasters or commercial broadcasters.)

A similar PBS guideline prohibits underwriting from entities engaged solely in the manufacture or marketing of cigarettes, little cigars and/or smokeless tobacco. (There are federal laws, enforced by the U.S. Department of Justice, to address the issue of broadcasting tobacco advertisements.)

Recent developments regarding the legalization of marijuana in certain states may also bring about additional questions, which should be reviewed with local station legal counsel. If your station is in one of the more than 20 states where medical marijuana is legal (or indeed the small number of states where recreational marijuana is now legal), you may be having discussions about whether or not to allow marijuana dispensaries or businesses to underwrite on your station. The dilemma is that while this is now legal in your state, under the federal Controlled Substances Act, it is a crime to manufacture, distribute or even possess any controlled substance, including marijuana. It is thus unclear if the First Amendment would protect the underwriting message in question, as “advertisements” -- and arguably, underwriting messages even more so -- are protected by the First Amendment only if related to “lawful activity.” Bottom line, there is not yet a definitive “yes” or “no” answer on this and its related risks, as the extent to which federal law would/could trump state law and potentially negatively impact your station is untested and unknown.