rebecca stamey white...1 compliant and effective social media and marketing rebecca stamey‐white...

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Compliant and Effective Social Media and Marketing

Rebecca Stamey‐Whitewww.beveragelaw.com

@boozerules2015 ADI Conference – April 1, 2015

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Agenda • Defining Your Brand through Social Media

• Alcohol Beverage Advertising Legal Landscape – Federal & State

• Advertising and Social Media Traps and Solutions

• Best Practices & Real World Examples

Hinman & Carmichael LLPwww.beveragelaw.com

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WHY?

6Hinman & Carmichael LLPwww.beveragelaw.com

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Baby Boomers• Original

• Maverick• Luxury

• Value proposition• Brand loyal

• Premium-brand driven• Relaxation, rewards


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Millennials• Organic & genuine

• Unique• Value v. values

• Conscious/sustainable-minded• Adventurous

• Disruptive• Social & influencers

• FOMO, selfie, ME


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Branding Questions


• What are your values & how does your brand represent them?

• What is your voice and your media for sharing it?• What conversation do you want around your

brand?• Who are your customers?• Where do they find you? Where & how do they

enjoy your product?• How do you send a consistent, aligned & integrated

marketing message?• What are your brand partners?

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Prioritizing


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Marketing Compliance

Advertising

EventsPromotions


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State and Federal Laws Apply

• Dual Jurisdiction & Cross-Violations• TTB Social Media Guidance and Advertising

Regulations• State regulations• There are no general rules – every state is

unique• IF IT’S NOT SPECIFICALLY PERMITTED, IT’S LIKELY

PROHIBITED. IF IT’S PERMITTED, IT MUST FOLLOW STATE AND FEDERAL RULES.


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Social media sites reach consumers anywhere and are considered advertising by TTB. What laws do you have to comply with?

o Federalo States where licensedo States where marketing takes placeo Tailor national advertising compliance to

the most restrictive state o Event advertising is state specific

The Lowest Common Denominator


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• “any written or verbal statement, illustration, or depiction which is in, or calculated to induce sales in interstate or foreign commerce, or is disseminated in mail… ” Including “any written, printed, graphic, or other matter... and broadcasts made via radio, television, or in any other media.” 27 CFR 4.61

• Every post, blog entry and tweet is an advertisement, and must comply with both federal and state law

What is Advertising According to TTB?

Hinman & Carmichael LLP www.beveragelaw.com

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• Mandatory Statements (27 CFR 5.63)

o Responsible advertiser – name and address (county and state) of permittee if general line or company or consumer specialty item – if only one product, then also need class & type, alcohol content, percentage of neutral spirits & name of commodity, distillation source

o Must be on home/profile page: (1) conspicuous and readily legible; (2) clearly apart of ad; (3) readily apparent

Federal Requirements


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Prohibited Practices:o No false or misleading statementso No statements inconsistent with the labelo No statements disparaging a competitor’s producto No misleading health claimso No misleading guarantees

Federal Requirements


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Limited State Guidance


• IL and CA: retailer advertising a per se thing of value, unless an exception (bills proposed may change this if passed)

• WA: social media ok, don’t appeal to or solicit viewers under 21

• OR: happy hour restrictions• TX: retailer locators okay• Others permit social media advertising

without guidance (e.g., KY, NC)

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• Other applicable areas of lawo Copyright, trademark, privacy, 1st Amendment law

• FTC Report on Self-Regulation in the Alcohol Industry• DISCUS Code of Responsible Practices & Digital

Marketing Guidelines• Age-affirmation, responsible consumption statement, socially

responsible content• 71.6% of intended audience must be reasonably expected to be

above legal drinking age & models 25+• Review posted content often, be transparent about ads, respect

privacy, be mindful of forwardable content• Complaint process

Other Legal Guidance


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Social Media Demographics

Facebook Twitter Instagram Pinterest Tumblr Spotify YouTube

ComScore 84.6% 81.6% 77.7% 88.5% 75.2% 71.8% 79.8%Nielsen 87.8% 90.1% 86.2% 91.7% 85.9% 82.1% 83.2%Age Gate

Yes Yes No No No No Yes

3/14Shopkick foursquare Vine Snapchat

ComScore (All Smartphones)

98.2% 97.0% 74.4% 73.7%

Age Gate No No No No

12/13


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Social Media Trap #1: Advertising Retailers

• Recent Activity: CA Charity events, CA Grape Escape, IL TPP #2 “Of Value” Violations

• Be very cautious of advertising and events that involve both suppliers and retailers

• If retailer receives any benefit from the supplier payment, involvement or advertising, then you might have a problem


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• STARTING POINT: In per se states that do not the federal inducement & exclusion standard, suppliers may not provide any “thing of value” to retailers, including advertising

• BUT, there are many exceptions to the rule…



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Exceptions for Certain Events Off Your Premises

• Bottle Signings

• Instructional Events for Consumers

• Retailer Tastings



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State-specific provisions for events: Usually basic information ONLY:

o Who, what, when, where and how

o No listing retail prices of wine

o No laudatory references (best bistro ever!) or pictures of the premises

o Retailer can advertise the event separately (including in some cases purchasing an ad on supplier’s website/ social media platforms) but no cost-sharing with suppliers



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• Sporting Events: many different flavors and often involve a non-profito PGA Tour

o Local Triathlon

o Donations of Product v. Sponsorships

• Many stadiums & arenas have specific statutory tied-house exemptions in the code



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Charity Events

• Must be approved by state ABC, different types of charities have different privileges

• Be wary of events involving retailers, i.e., Grape Escape

• It’s the charity’s event, not the producer’s (marketing and profits)



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Exception: Retailer Locators

• Two or more unaffiliated retailers, under 27 CFR part 6.98

• But states may be more restrictive (some permit location, not the identity of retailers that carry the product)



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Example


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Example – Jack Daniel’s Few & Far Between


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Just the facts, Ma'am!

Example – Permitted Events


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Example – Retailer Locator


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What if a consumer posts that they believe your product is made with fairy dust and will give anyone who drinks it superpowers?

Or worse…

Social Media Trap #2: Posts by Others


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• Limited safe harbor for posts by others

• Advertising DOES NOT include editorial content that is not paid for by the licensee or written at the direction of the licensee

• I.e., posts by consumers or retailers



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Social Media Trap #3: Employee Posts

FTC Guidelines for Endorsements and Testimonials (16 C.F.R. 255):

As of December 1, 2009, businesses now have the responsibility to educate and require disclosure from company employees and any influential bloggers the companies work with on social media marketing programs. In essence, employees who discuss your company or its products on

their own personal social media sites must fully disclose their affiliation with your company on these personal blogs, Facebookpages, etc.


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Employees who discuss your company or its products on their own personal social media sites must fully disclose their affiliation with your company on these personal blogs, Facebook pages, etc. 16 C.F.R. 255


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Other Concerns with Employee Posts:• Copyright infringement• Revealing employer trade secrets/proprietary

information• Gripe sites: criticizing employer• And everyone’s favorite . . . “Unprofessional”

messages and photos


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Social Media Trap #4: Unlicensed Third Party Advertisers

• Online marketers, delivery services, flash sale sites, promotions and events companies are unlicensed agents of the licensee and may perform services that the licensee may lawfully perform itself

• Only licensees can exercise the privilege of owning a license, including:

o Making purchasing decisions

o Taking title to the products (pay for)

o Determining pricing

o Profits & losses from the sale of alcoholic beverages

• Payment considerations

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• What about private labels owned by unlicensed entities

• Licensees are still responsible for compliance• What happens if the unlicensed brand

“owner” decides to violate the ABC laws?

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• Place ads responsibly and consider age-gating with DOB

• Create responsible content and monitor posts by others

• Confirm age: Push content v. dialogue

• Educate partners

• Create clear privacy policies and a company social media policy

Social Media Best Practices


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Promoting responsible consumption!

Example


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Questions?April 1, 2015

Rebecca Stamey‐WhiteHinman & Carmichael LLP

www.beveragelaw.com

rebecca stamey white...1 compliant and effective social media and marketing rebecca stamey‐white...

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