Is it Valuable?

TTBEarlier this week I was in Pittsburgh, attending the always excellent American Craft Spirits Association convention.  That meant a solid three days of touring distilleries, networking with some amazing folks, and attending some informative workshops.  It was a great time.  I look forward to attending again next year.

During one of the workshops – a panel discussion entitled “Leveraging Media Properly to Market your Brand” – a member of the audience asked one of the presenters (Brian Christensen of Artisan Spirit), to comment on social media posts by spirits producers that publicize upcoming on-premise and off-premise events featuring their products.

As this question was posed, I saw Brian look out into the audience and see me sitting about halfway to the back.  And that was when I began to hear the bus backing up.  Brian noted that the question raised interesting legal issues, and asked if I might take a moment and answer from the legal perspective.

I stood and started to answer the question when a microphone was thrust into my hand.  This was a problem for me, as I’m pathologically incapable of maintaining decorum when presented with any form of amplification.  An instant later, almost by reflex, I found myself singing the first few notes of Danke Schoen to the assembled group.  And after that, everything went dark.

Actually, that last bit isn’t entirely true.  For after doing my best Wayne Newton impression I spent the next several minutes answering the original question and a few followup questions around social media promotions in the spirits world.  And then after the panel presentation concluded I found myself answering a few more.

With that as background, let me offer here a few of the thoughts that I shared earlier this week – but without the lounge singer intro.

First, note that the law does not meaningfully distinguish between social media communications and communications in other media.  If it would be problematic for your spirits brand to say or do something in traditional media, it is probably also problematic for you to say or do that same thing on social media.

Second, be aware that if you’re promoting (i.e., advertising) any retailer (on or off-premise) with respect to the sale of your products, you’re most likely providing the retailer a “thing of value” (i.e., the advertising) – and that may be a violation of both state and federal law.

Third, note that federal law offers you some leeway in terms of simply providing consumers with information about where your products may be purchased.  This leeway is enhanced if your products are available through more than one retailer (and you list more than one) because that list would not appear to favor a single retailer.

Fourth, note that even if your advertisement (in traditional or social media) is acceptable under federal law, that does not mean that it is acceptable under relevant state law.  On the contrary, there are many states that are stricter than the TTB when it comes to the advertising of spirits.

All of this is a long way of saying be careful in what you promote and how you promote it.  Your Twitter feed may feature a constant stream of on-premise pop-up events by spirits brands across the U.S., but that doesn’t mean the messaging is compliant.  It just means that those companies are taking risks that you may, or may not, want to take.


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