A Brewery "Advertises" Each Time it Uses Social Media
Recently, MillerCoors, LLC was sued in a California State Court because its marketing and advertising of Blue Moon was alleged to be false, deceptive and misleading consumers to believe Blue Moon is "craft" beer. While based on California State law, the lawsuit should remind Ohio breweries to think about Federal and Ohio regulations which govern not only verbal and written advertising, but their social media messages.
In Ohio, an advertisement “means any written or verbal statement, illustration, or depiction created to induce sales through a combination of letters, pictures, objects, lighting effects, illustrations, or other similar means.” Federally, advertisement is defined similarly, but includes the catch-all provision “or in any other media.” TTB Industry Circular 2013-01 makes clear that advertisements in any media, including social media, are subject to Federal regulations arising out of the Federal Alcohol Administration Act.
Under Federal regulations, all advertisements (except labels and news releases) must contain:
- the name and address (street name/number not required) of the brewer; and
- an obvious statement of the class to which the product belongs
These mandatory statements must be:
- obvious and legible;
- clearly part of the advertisement; and
- readily apparent to the persons viewing the advertisement.
A brewery’s use of social media does not excuse compliance with the above. Breweries should consider the following “best practices” when using popular social media sites:
- Facebook, LinkedIn, YouTube, Twitter and/or Instagram - mandatory statements should appear in the profile and/or about section of the home page.
- Brewery blog discussing your products or the industry in general - mandatory statements should appear on the home page your blog.
Federal and Ohio regulations also list specific practices and statements that are prohibited from advertising. Broadly, false and misleading advertising is prohibited. Specifically, any reference to Santa Claus (Ohio) and use of flags, seals, coats of arms, crests and other insignia (Federal) is prohibited. Prohibited practices and statements even apply to Twitter’s 140 character limitation!
Contact OBC with any questions.