The TTB Recently Issued Guidance on Social Media Advertising
The TTB recently issued Industry Circular 2013-01, “Use of Social Media in the Advertising of Alcohol Beverages.” You can find it here.
Social Media = Advertising
In short, the Circular’s point is that the TTB considers social media to be advertising, and, as such, it is subject to TTB’s advertising regulations. The TTB has provided clear guidance that it plans to hold industry members responsible for the content related to alcohol beverage products posted by industry members on social media sites. Industry members should be careful to comply with the mandatory statements and prohibited advertising practices in both social and conventional media contexts, and to generally take into account the same considerations. Because social media moves faster and has been sometimes operating in parallel to convention media promotions, industry members may be well served by auditing their current social media content and practices.
Key points include:
- Social Media as Advertising. An industry member’s social media pages, video sharing sites, blogs, and microblogs (aka Twitter or Tumblr) are considered advertisements for purposes of the FAA Act and the implementing regulations. Links may also be considered advertisements depending upon the nature of the linked content.
- Apps as Consumer Specialty Advertisements. Mobile applications are considered consumer specialty advertisements, because they are designed to be downloaded and “carried away” by a consumer’s mobile electronic device.
- Mandatory Statements. Advertisements must include all mandatory statements. Generally speaking, the industry member must include the name and address of the responsible advertiser, along with the relevant class and type. The TTB provides some advice about the location of the mandatory statements for each type of social media with the guiding principal that they should be placed where a viewer would expect to find them.
- Prohibited Practices. Federal law on prohibited practices or statements applies to these advertisements. Examples of prohibited practices or statements are those that are:
- false, misleading or deceptive;
- disparaging of a competitor’s product;
- obscene or indecent;
- suggestive of intoxicating qualities;
- inconsistent with labeling; or
- making certain health-related claims.
Social Networking Pages
The TTB has determined that these pages are “advertisements” under federal law. Anything posted to a page by an industry member is considered part of the advertisement, including information, images, or content created by a third-party and re-posted by the industry member. Because pages are advertisements, they must include all mandatory statements. The entire fan page is considered one advertisement, so the mandatory statements need only appear once such as on the home page. The regulations do not require that mandatory statements appear in a specific location, but they should appear where viewers would “most logically expect to find information about the brand or company,” such as an “About” section. Importantly, the mandatory statements should not be “hidden” or “buried.” The prohibited practices apply.
Video Sharing Sites
Videos and channels created by the industry member are considered advertisements. As a result, the rules on mandatory statements and prohibited practices apply. Again, the TTB recommends that industry members place the mandatory statements where viewers would expect to find such information. Additionally, the videos themselves must each contain the mandatory statements if they are downloadable by viewers, or if there is no associated channel or profile page. As a best practice, the TTB recommends placing the mandatory information on both the channel or profile page and the individual videos.
An industry member’s blog is considered to be an advertisement if it discusses its products, which is the point of a blog. As a result, the rules on mandatory statements and prohibited practices apply.
Unlike blogs, microblogs (Twitter and Tumblr) contain very short posts, brief sentence fragments, images, or links to videos. These microblogs are considered by the TTB to be advertisements and, accordingly, subject to the mandatory statement and prohibited practice rules. Because microblogs, by definition, have strict character limits, it is impractical to require the inclusion of mandatory statements in each post. For this reason, the TTB allows industry members to include the mandatory statements on its home or similar pages.
Some industry members are creating apps for mobile phones that have some utility to the consumer. Apps may provide drink recipes, help consumers find locations where a product is served, or provide other information related to the relevant alcoholic beverage. The TTB has determined that apps are consumer specialty advertisements, i.e. “items that are designed to be carried away by the consumer…” because they are downloaded by the consumer onto a mobile device. As a result, the only mandatory statements required are the company name or the brand name of the product. Not surprisingly, the regulations on prohibited practices also apply to apps.
Industry members often post links to other sites. The TTB has retained discretion to determine whether the linked content will be considered an advertisement based on the totality of the circumstances. The TTB did indicate that the industry member’s description of the linked site or page is considered part of its advertisement and thus must comply with the prohibited practices or statements rules. If the industry member provides links to other websites or pages for different alcoholic beverages or companies for which it is the responsible advertiser, the linked website or page is considered to be a separate advertisement that must contain all necessary mandatory information and comply with the prohibited practices or statements regulations.