. 1st Amendment 1. The test I would use to decide whether or not these liquor producers could package their products in this manner is the intermediate test as it relates to commercial speech. As the book states, "Because the constitutional protection extended to commercial speech is based on the informational function of advertising governments may regulate or suppress commercial messages that do not accurately inform the public about a lawful activity". In other words, Budweiser is intentionally distributing cans that make it seem like an advertising connection has been made between Bud and the respective university, which is false. In the case of Santa Claus on liquor bottles, the issue is that the advertising seems to be aimed at minors. The FTC has, in fact, specifically deemed that Santa cannot be used to advertise products not for use by minors