The Federal Alcohol Administration Act (27 USCA Ch.8, subchapters I-II, Sections 201-219a, as applicable) (The “Act”) authorizes the US Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (the “TTB”) to be the permitting authority for importers, producers, and wholesalers of wine; and to regulate the advertising and marketing of wine, including as relates to labeling. This blog will focus more specifically on advertising. However, the Federal Trade Commission (the “FTC”) standards pursuant to which the FTC has made substantial inroads to protecting minors and the advertising of alcohol to people under 21 and State regulation of alcoholic beverages with respect to advertising, are not addressed in the scope of this blog. The Act itself provides for several robust restrictions and requirements but at Rogoway Law Group we are prepared to assist with multiple facets of law with respect to your beverage law needs and inquiries.
Wine Advertising Regulations Under the Federal Alcohol Administration Act
In general, advertising laws under the Act intend to protect against consumer confusion, false impressions, misrepresentation and misleading statements, deception, false claims, lack of clarity, indecency, inconsistency, improper influence, lack of transparency, improper health-related benefit claims, among other things. Below are some of the key requirements, restrictions and limitations to keep in mind with respect to the Act when advertising in the wine business.
Responsible Advertiser & Statement of Class, Type, Distinctive Designation
27 C.F.R. § 4.62- provides, among other things, with certain limited exceptions, that ads must:
- display the responsible advertiser’s name, city, and State or the name and other contact information (e.g. phone number, website, or email address) where the responsible advertiser can be contacted.
- contain a conspicuous statement of the class, type, or distinctive designation to which the product belongs, corresponding with the statement of class, type, or distinctive designation which is required to appear on the label.
Legibility of Mandatory Information in Advertising
27 C.F.R. § 4.63- with respect to the legibility of mandatory information in advertising, requires, among other things that mandatory information shall:
- be in lettering or type size sufficient to be conspicuous/readily legible;
- be stated as clearly a part of the ad and not be separated from the remainder of the ad;
- not be stated for two or more products unless clearly separated; and
- be stated in both the print and audio-visual media so that it will be readily apparent to the persons viewing the ad.
27 C.F.R. § 4.64- with respect to Prohibited Practices, provides for a plethora of prohibited practices in connection with advertising, as follows:
(a) General restrictions on advertisement of wine:
Ads for wine may not contain:
- false or misleading statements;
- information disparaging a competitor’s product;
- obscene or indecent statements, designs, devices, representations;
- guarantees, other than a money-back guarantee;
- any statement that the product is produced, blended, bottled, packed, or sold under any law or regulation;
- any statement of bonded wine cellar and bonded winery numbers unless stated in direct conjunction with the name and address of the person operating the winery; and
- any statements that may convey the impression that the wine has been made or matured under government supervision or under government specifications or standards, among other restrictions.
(b) Statements inconsistent with labeling:
- Ads shouldn’t contain a statement concerning a brand or lot of wine that is inconsistent with any statement on the label and any label depicted on a bottle in an ad must be a reproduction of an approved label.
(c) Statement of age:
- No statement of age or representation relative to age, including words or devices in any brand name or mark, should be made, except for limited exceptions (e.g. with respect to vintage wine, or use of the word “old” as part of a brand name and certain other restrictions and limited exceptions).
(d) Statement of bottling dates:
- The statement of any bottling date shall not be deemed to be a representation relative to age, if such statement appears without undue emphasis in the following form: “Bottled in ___” (inserting the year in which the wine was bottled).
(e) Statement of miscellaneous dates:
- No date, except as provided in sections (c) and (d) above, with respect to statement of vintage year and bottling date, shall be stated unless in the same size and kind of print there is an explanation of the significance of the date: Provided, that if any date refers to the date of establishment of any business, such date shall be stated without undue emphasis and in direct conjunction with the name of the person to whom it refers.
(f) Flags, seals, coats of arms, crests, and other insignia:
- Ads must not contain any statement, design, device, or pictorial representation of or relating to (or capable of being construed as relating to) the armed forces of the United States, or of the American flag, or of any emblem, seal, insignia, or decoration associated with such flag or armed forces; nor shall any ad contain any statement, device, design, or pictorial representation of or concerning any flag, seal, coat of arms, crest, or other insignia likely to mislead the consumer to believe that the product has been endorsed, made, or used by, or produced for, or under the supervision of, or in accordance with, the specifications of the government, organization, family, or individual with whom such flag, seal, coat of arms, crests, or insignia is associated.
(g) Statements indicative of origin:
- No statement, design, device, or representation which tends to create the impression that the wine originated in a particular place or region, shall appear in any ad unless the label of the advertised product bears an appellation of origin, and such appellation of origin appears in the advertisement in direct conjunction with the class and type designation.
(h) Use of the word “importer” or similar words:
- The word importer or similar words shall not appear in ads of domestic wine except as part of the bona fide name of the permittee by or for whom, or of a retailer for whom, such wine is bottled, packed or distributed, provided, that in all cases where such words are used as part of such name, there shall be stated the words “Product of the United States” or similar words to negate any impression that the product is imported, and the negating statements must appear in the same size and print as the name.
(i) Health-related statements:
- This section, among other things provides that:
- ads may not contain any health-related statement that is untrue in any particular manner or tends to create a misleading impression as to the effects on health of alcohol consumption;
- A specific health claim will not be considered misleading if it is truthful and adequately substantiated by scientific or medical evidence; sufficiently detailed and qualified with respect to the categories of individuals to whom the claim applies; adequately discloses the health risks associated with both moderate and heavier levels of alcohol consumption; and outlines the categories of individuals for whom any levels of alcohol consumption may cause health risks. This information must appear as part of the specific health claim and in a manner as prominent as the specific health claim;
- A statement that directs consumers to a third party or other source for information regarding the effects on health of wine or alcohol consumption is presumed misleading unless it—
- Directs consumers in a neutral or other non-misleading manner to a third party or other source for balanced information regarding the effects on health of wine or alcohol consumption; and
- Includes as part of the health-related directional statement, and in a manner as prominent as the health-related directional statement, the following disclaimer: “This statement should not encourage you to drink or increase your alcohol consumption for health reasons;” or includes as part of the health-related directional statement, and in a manner as prominent as the health-related directional statement, some other qualifying statement that the appropriate TTB officer finds is sufficient to dispel any misleading impression conveyed by the health-related directional statement.
(j) Confusion of brands:
- Two or more different brands or lots of wine may not be advertised in one ad (or in two or more ads in one issue of a periodical or newspaper, or in one piece of other written, printed, or graphic matter) if the ad tends to create the impression that representations made as to one brand or lot apply to the other or others, and if as to such latter the representations contravene any other provisions of the Act or are untrue.
(k) Deceptive advertising techniques:
- Subliminal or similar techniques are prohibited. “Subliminal or similar techniques,” refers to any device or technique that is used to convey, or attempts to convey, a message to a person by means of images or sounds of a very brief nature that cannot be perceived at a normal level of awareness.
How Rogoway Law Can Help
At Rogoway Law we are happy to help navigate these complicated and highly detailed and specific rules, as well as simultaneously navigating other regulations, rules and laws with respect to advertising, marketing, and labeling more generally. Please reach out to us with any questions and we will be happy to assist you with your legal and business-legal beverage needs and inquiries. Contact us today to schedule a complimentary consultation and learn more about how we can assist you.