I live with
three minors – currently aged 7, 10 and 13. They are teetotalers. I am pleased with this arrangement. Their mother is equally pleased.
And while I anticipate that their alcohol consumption may at some point increase, their current vice of choice is more electronic than alcoholic. Specifically, the youngest members of the household have spent all of the past week in a never-ending quest to catch digital monsters. Yes, the Pokémon Go craze has hit our household.
Since only the oldest of these gentlemen has a phone, this means that my wife and I each allow the other fellows access to our respective phones from time to time. For purposes of this particular boondoggle, the middle boy is using my wife’s phone, and the youngest can occasionally be found using mine (supervised) to locate and capture the occasional Squirtle (no, really, that’s a thing – a kind of turtle-like creature – you learn these things as a parent).
The creators of the game, Niantic, Inc., are getting quite a bit of press. While some of that relates to unfortunate incidents involving people becoming too distracted with their phones to notice that they’re about to be injured by their surroundings, much also relates to the fact that the game is quite good for business. Ride-sharing companies are launching special services catering to Pokémon trainers trying to catch elusive creatures. Similarly, small businesses are buying lures that attract monsters to their storefronts in the hopes that trainers will follow. And, of course, Niantic is gathering immense amounts of data about the habits and movements of the individuals playing the game which they are free to monetize as they choose.
Not surprisingly, the craze also quickly found its way into the wonderful world of spirits. This is true not just because a Spearow appeared on the bar in a particularly HoochLawyer’s office. Rather, because the virtual world used by Niantic to designate PokeStops and Pokémon Gyms corresponds neatly to the real world – meaning that these virtual locations are found at actual physical locations here on earth. And in some situations, that can create some concern.
This afternoon, while walking past a local distillery, my phone buzzed to let me know that I was approaching a PokeStop – a location where I could acquire in-game articles. What was the PokeStop in question? The distillery itself. [Note: the distillery in question had not chosen to be a PokeStop – that decision was made by Niantic as part of its launch of the game.]
There do not appear to be any federal laws which would directly prohibit the marketing of spirits through association with Pokémon Go. Nevertheless the prudent industry participant will pause before hitching the marketing wagon to this particular horse. The primary issue for consideration is audience.
While the TTB does not prohibit the use of social media or digital advertising in connection with the truthful marketing of spirits, the industry has wisely determined that a healthy dose of self-regulation is appropriate in an effort to potentially head off future TTB rulemaking or other governmental interference on the topic. For that reason, the Distilled Spirits Counsel of the United States (DISCUS) put forward in 2011 its Guidance Note on Responsible Digital Marketing Communications.
The Guidelines speak primarily in terms of how to responsibly utilize the Internet or social media in connection with the marketing of spirits. But while DISCUS did not foresee the rise of Pokémon Go back in 2011, the Guidelines are nevertheless helpful in the context of this new craze. Specifically, the Guidelines counsel that member companies should seek to direct their digital presence into media where at least 71.6% of the audience is reasonably to be expected to be of the legal purchase age.
Does that mean that DISCUS member companies should avoid taking advantage of Pokémon Go? Possibly so. Although Niantic itself has not released data concerning the ages of players, there is reason to believe that almost 60% of Pokémon Go users are under age 26. Therefore, by purchasing lures, creating contests based on Pokémon Go or otherwise taking advantage of this craze, distillers run the risk of directing their digital marketing efforts directly at minors. And while not necessarily illegal, that may simply be bad business.
HoochLaw 