The Alcohol and Tobacco Tax and Trade Bureau Updates Its Guidance for Industry Members on the Use of Social Media To Advertise Alcohol Beverages

Social media has become an ever-increasing channel of communication and a popular and effective medium for advertising with over four billion people using platforms like Facebook, TikTok, Twitter, and Instagram.  Athletes, celebrities, and influencers abound on these platforms. Like many other industries, the alcohol industry has jumped into the fray; spending countless dollars advertising through social media.  Because of the growth of social media advertising and the use of it by alcohol brands, the Alcohol and Tobacco Tax and Trade Bureau (TTB) issued Industry Circular 2022-2 to provide guidance on how the TTB’s rules on advertising apply to advertising via social media.

The TTB’s advertising regulations are codified in the Federal Alcohol Administration Act. These regulations protect consumers by prohibiting false or misleading claims and requiring certain information regarding the product advertised. By way of example, the TTB requires certain mandatory information appear on alcohol advertisements:

• Malt beverages: When advertising a product line or by company name or brand include the name, city, and state or the name and other contact information (telephone number, email address, or website) where the responsible advertiser may be contacted.
  • When advertising a specific product, the advertisement must also include the class of the product that is required to appear on the label.
• Distilled Spirits: When advertising a product line, company, or brand name include the name, city, and state or the name and other contact information where the responsible advertiser may be contacted.
  • When advertising a specific product, the advertisement must also include the product class and type and the alcohol content and the percentage of neutral spirits that appear on the label of the product advertised.
• Wine: When advertising a product line or by company name or brand name include the name, and address of the permittee responsible for the advertisement.
  • When advertising a specific product, the advertisement must also include the class, type, or designation that is required to appear on the label.
• All commodities: The class of the product, corresponding with the information shown on the approved product label.
• Consumer Advertising Specialties: When advertising via consumer advertising specialties, such as shirts, hats, and bumper stickers, only the company name of the responsible advertiser or the brand name of the product is required.

Recognizing that industry members face some unique compliance challenges with these regulations when advertising on social media the TTB made clear that all social media accounts, pages, and content that advertise an alcoholic beverage, brand, or specific alcoholic product are subject to TTB regulations. The TTB went on to reaffirm that mandatory information should appear where a viewer would most logically expect to find the information. For example, the name and contact information of the person responsible for the ad can be included in the profile section; while class, type, and alcohol content information can be included on the specific page promoting a specific product. This includes changes to mobile websites, crowdsourcing sites, augmented reality, and social media influencers.

Some of the important guidance to remember when advertising alcohol on social media is outlined below.

• Mandatory Information: The TTB views an entire page or site as a single advertisement, so mandatory statements only need to appear once on the page. The information should be conspicuous and readily apparent to the viewer.
• Social Networking Services: The TTB generally considers an industry member’s entire social media account, for example, Instagram, to be a single advertisement.
  • The TTB considers any content an industry member posts, “likes,” or reposts to their social media part of the advertisement and subject to TTB regulations.
  • On social media sites where providing all the mandatory information may be difficult due to space restrictions, advertisers can provide a link to another webpage containing the mandatory information.
  • When using a link to provide mandatory information, the link must be clearly marked to indicate that the mandatory information can be found by clicking the link. In addition, the link should take the viewer directly to the mandatory company or product information—not a general website requiring additional navigation to locate the information.
• Mobile Websites: Many industry members use internet websites to advertise their product, and it is common practice to have a special version of the website for mobile devices. Both versions of the website must comply with the TTB advertising regulations.
• Social Media Influencers: Social media influencers often directly or indirectly endorse products on their social media accounts. Content created and posted by influencers may be considered an advertisement subject to TTB advertising regulations. This may be true even when the influencer’s content is posted on the influencer’s own social media account instead of the industry member’s account. Influencers can satisfy the requirements by including a clearly marked link to another website containing the mandatory information.
  • Note that in addition to the TTB requirements, the Federal Trade Commission (FTC) also has specific requirements relating to social media influencers and endorsements.
• Media Sharing: If a social media profile or website contains mandatory information only in the profile section, and posted media such as photos, gifs, or videos can be downloaded or shared on other pages or platforms, the industry member must include the mandatory statements within the images or videos themselves.
• Crowdsourcing/Crowdfunding Sites: Some industry members use crowdfunding websites to raise capital or solicit donations. If the website discusses either the industry, the company, or any of its alcoholic beverage products, the content – or even the entire page- may be considered an advertisement that is subject to TTB advertising regulations.
• Augmented Reality: If industry members make use of augmented reality technology to advertise their company, brand, or specific product, the augmented reality content must comply with TTB advertising regulations.

Social media has solidified its place as a main means to advertise and promote products.  With the increased scrutiny given to social media platforms by the TTB, it is critical that all industry members and those with a social media presence review their advertising practices to confirm that they are in compliance with applicable federal (and state) advertising rules and regulations.

Reprinted with permission from the February 14 issue of The Legal Intelligencer. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. 

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice.