Topic: Social media
Who: The US Alcohol and Tobacco Tax and Trade Bureau
When: 15 May 2013
Law stated as at: 9 July 2013
New guidance has been issued in the USA on the use of social media in the advertising of alcohol. The USA Alcohol and Tobacco Tax and Trade Bureau (the “TTB“), the body within the US Department of Justice which regulates the alcohol industry, has issued the guidance in the form of an Industry Circular, which sets out practical advice as to when US advertising laws and regulations will apply in the context of social media.
The legal framework relevant to advertising alcohol in the US is the Federal Alcohol Administration Act and its implementing regulations under the Code of Federal Regulations (the “Advertising Law“). It sets out rules relating to certain mandatory statements (e.g. advertiser name and address) that must be included in advertisements (“Mandatory Statements“) and the prohibition of misleading advertising, amongst others. The Advertising Law defines an “advertisement” as including “any written or verbal statement, illustration, or depiction which is in, or calculated to induce sales in, interstate or foreign commerce, or is disseminated by mail, whether it appears in a newspaper, magazine . . . or in a radio or television broadcast, or in any other media“. While the Advertising Law does not specify that “any other media” includes social media, the Industry Circular clarifies that the “TTB interprets “any media” in the regulations to apply to advertising in all types of media, including types of media that did not exist when the regulations were originally adopted.”
The TTB provides a number of examples of social media that it considers capable of falling within that definition. It provides advice tailored to each of those examples as to the steps that should be taken for compliance. Some of the main points are set out below:
Social network services
- The TTB considers fan pages on social network sites (e.g. Facebook and Linkedin) for alcohol beverage products or companies, and any content regarding alcohol beverage products posted to the pages by the industry member, to come within the scope of the Advertising Law.
- The entire fan page including the homepage and all tabbed pages directly associated with the homepage are considered to be one advertisement. Therefore, Mandatory Statements need only appear once on either of those pages – though the TTB recommends that they are placed “in a location where a viewer would most logically expect to find information about the brand or the company” (e.g. the “profile” section).
Video sharing sites
- The TTB states that videos about alcohol beverages which are posted on video sharing sites (e.g. YouTube) by industry members are capable of being ads under the Advertising Law – as will any associated “channel” created by an industry.
- Mandatory Statements should appear within the video where there is no associated channel and where there is both a video and associated channel they must appear in the most logical place (and the TTB recommends they appear on both).
- Blogs maintained by an alcohol industry member about itself and which discuss issues related to the company, its products or the industry in general, will be considered by the TTB as advertisements subject to the Advertising Law.
- Microblogs, such as Twitter and Tumblr, are also capable of falling within the scope of the Advertising Law.
- Due to character limitations on microblogs, the TTB views it as impractical to require Mandatory Statements to appear in the microblog posts themselves, although they must appear somewhere on the advert that is “conspicuous and readily legible” – such as on the microblog profile page.
- The TTP states that apps related to alcohol beverages (e.g. which provide drink recipes or provide information on where alcoholic products are served) are considered advertisements under the Advertising Law.
- However, only a limited Mandatory Statement of the company name or brand name of the product is required to appear in the app. (This is because it is downloaded by the customer and therefore considered to be a “consumer speciality advertisement” to which different Mandatory Statement rules apply.)
Links and quick response codes
- The TTB considers that links and quick response codes (and the content to which they guide a user) set out in an advert could in fact constitute part of the advert. Therefore it is advisable for advertisers to carefully consider whether the links and quick response codes themselves comply with the Advertising Law.
Why this matters:
While the Industry Circular does not change US law, it offers some clarity and certainty for advertisers in the alcohol industry on the actions they should take to ensure compliance with the Advertising Law when using different types of social media as a marketing tool.
Although the TTB has set out guidance for specific types of social media, the list of relevant social media discussed in the Industry Circular is not exhaustive. The TTB says this is “because of changing technology and the ongoing evolution of social media” but also notes that “the general principles set out in [the] circular can be applied to other social media outlets that have been or will be developed”.
Therefore, US advertisers should not presume that other types of social media are exempt from the US Advertising Law and so should aim to comply with the “general principles” of the Industry Circular in all their social media marketing.
UK advertisers targeting a US audience on social media should heed the TTB’s guidance, whilst those targeting the UK will find that the CAP Code provisions relating to alcohol advertising have similarly wide applicability to communications in social media that are under the alcohol brand’s control.
Osborne Clarke, London