Founding Partner Marbet Lewis Publishes Article in South Florida Business Journal – “Special Social Media and Digital Guidelines for Advertising Alcohol”

By   – Founding Partner, Spiritus Law

As a result of diminished on-premise traffic, e-commerce has become a lifeline for restaurants and other hospitality venues that otherwise benefit from direct customer interaction and visual display marketing. Online sales of alcohol continue to rise as restaurants try to survive without dine-in patrons by taking advantage of flexibility in emergency orders that now allow creative new sales options, such as cocktails to go.

Ongoing operational pivoting also requires alcohol retailers and producers alike to make a shift from traditional marketing practices to a more aggressive use of digital campaigns. For the alcohol industry, which is already highly regulated, online marketing presents new challenges since formalized guidance in this area has been slow, and alcohol industry members are unsure of best marketing practices to avoid advertising to minors.

Develop responsible advertising messages and avoid liability

Marketing campaigns posted on social media platforms and fan pages along with shared videos, blogs and website ads are widely classified as “advertisements,” which are subject to all the requirements and restrictions under federal and state law. Accordingly, alcohol producers and retailers need to familiarize themselves with available guidance to develop responsible campaigns and avoid liability, as the demand and interest in alcohol products continues to rise.

Applicable rules and regulations vary depending on your role in the alcohol marketplace. For example, alcohol producers and distributors are more widely and aggressively regulated on the federal level than on the state level, which is unlike on-premise service establishments that sell alcohol to the general public. Federal law requires that alcohol advertisements by alcohol producers and distributors contain certain specified content language, including the name of the advertiser, the type of alcohol, the alcohol content of the product being advertised, and a plethora of other content requirements and restrictions. However, on-premise service establishments like restaurants, bars and hotels are more heavily regulated by state laws that vary from jurisdiction to jurisdiction, making it difficult to develop national advertising campaigns.

Voluntary guidelines provide blueprint for digital marketing

Fortunately, the Distilled Spirits Council of the United States (DISCUS), The Beer Institute and The Wine Institute have developed recommended guidelines to prevent targeting of minors or dissemination of false statements in alcohol advertising. These guidelines are separate and apart from additional regulations against false advertising and impermissible health benefit statements that also apply to alcohol marketing. Overall, the voluntary guidelines establish a blueprint for digital marketing campaigns to ensure alcohol marketing only reaches appropriate audiences. With respect to digital media, the key guidelines apply equally across all online platforms. The basic principles addressed in each of the voluntary codes, like DISCUS, include various best practices to ensure alcohol marketing is targeted at adult audiences age 21 or older, including the following.

  • Alcohol advertisements should not be presented or marketed in any manner that directly or primarily appeals to minors. Advertisements should not contain any imagery or statements that would be attractive to minors, such as holiday characters, cartoons, superheroes or actors that are or appear to be under 21.
  • Digital marketing communications should be placed only in media where at least 71.6% of the audience is of the legal purchase age or contain age affirmation prompts to limit minors’ access to alcohol related ads and menus.
  • Age affirmation prompts requiring users to confirm legal age prior to gaining access to a website or social media platform are highly recommended.
  • Marketing communications that are intended to be forwarded by users should include instructions that the content shouldn’t be forwarded to individuals below the legal purchase age.
  • Any sponsored or paid content must be clearly identified as such, and all marketing and promotion communications must be clearly identified as a marketing communication/advertisement.
  • Digital marketing communications, including email marketing, must respect user privacy, and audience users should be given instructions on accessing privacy policies.
  • Advertisements should not depict situations where beverage alcohol is being consumed excessively or in an irresponsible manner. Actors and persons appearing in an ad should not appear intoxicated or in any way suggest that intoxication is socially acceptable conduct.

Even with this guidance, posting alcohol advertisements on social media can be difficult and risky because the posts are public, target your followers, which may be under 21, and they can be shared. Most social media sites do have tools that allow advertisers to limit viewer ability to post comments or share a post. Marketing posts, and your main social media page, should include appropriate filters to limit those that can follow your page(s) and limit post access to audience users of legal consumption age. Social media platforms also allow you to customize the intended target audience and set age limits for intended audiences. Nonetheless, the following guidance is particularly helpful for properly filtering social media alcohol campaigns.

  • User Generated Content (UCG) that appears on a site or web page should be monitored each business day or, at a minimum, every five business days.
  • When content is determined to be inappropriate, it should be removed promptly. Company profile and fan pages should clearly advise users that all inappropriate content generated by users will be removed from the site or web page.
  • Advertisements that include specific pricing or drink specials should only be targeted to audiences within a specific region to prevent violation of state laws that limit happy hour and drink special promotions.

Developing compliant marketing practices is essential for effective online campaigns as digital and social media platforms continue to dominate user engagement. The available voluntary codes and guidelines provide an effective foundation that can help businesses reach the appropriate target audience and minimize risk of liability.

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About Spiritus Law:
Spiritus Law is an entrepreneurial law firm focused on business regulatory licensing, trade practice compliance and business conflict resolution for highly regulated industries dealing in alcohol production and distribution, hospitality services, commercial development and international business transactions. The Firm is founded on traditional principles of client counseling and teamwork with a cutting-edge twist on regulatory innovation and modern problem-solving. We focus on the business needs of individual clients and leading industry members so we can advance business objectives and influence regulatory changes that guide our clients’ business operations. Spiritus Law combines a unique blend of professionals, including attorneys, government consultants, licensing assistants and paralegals to assist its diverse clients. We leverage our unparalleled experience working with government agencies and judicial courts on the federal, state and local level to develop compliance business operation strategies and resolve business conflicts and disputes. Our modern approach to transparent client representation and employee engagement defines our collaborative spirit and progressive energy.

Core Services:
Primary service areas include Alcohol Licensing & Regulatory Compliance, Alcohol Production & Distribution Transactions, Commercial Litigation & Business Disputes, Hospitality Regulatory Compliance & Permitting, Commercial Development and Administrative Enforcement Defense with special life management services for law enforcement and first responders. The Alcohol Industry Group focuses on providing complete food and alcohol licensing and regulatory services in the development of licensing structures and business operational guidelines for the manufacturing, importation, purchase and retail sale and service of alcoholic beverages. Our firm services an array of industries, including alcohol producers, sports teams, hotels, theme parks, movie theaters, grocery stores, liquor stores, bars, commercial developers and more.

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