The Distilled Spirits Council of the United States (“DISCUS”), which represents spirits manufacturers and suppliers, this week released new guidelines (PDF) for marketing and promoting alcoholic beverage products via social media and other digital platforms.

While guidelines such as these are not binding, and not directly enforced by state or federal regulators, they may, over time, become “industry standard” practices that will influence agency interpretations and civil litigation on related subjects. This is especially likely to happen in the case where statutes, regulations, and case law may otherwise struggle to keep up with the pace of electronic marketing strategy, especially in the social media context. Similar self-regulatory codes have been adopted by the Wine Institute and the Beer Institute, though to date these have less specifically addressed social media issues.

Any proposed advertising, promotion and marketing activity concerning alcoholic beverage sales should be evaluated for compliance with applicable state laws in particular. The rules generally fall into three primary categories: 

  • Content—for example, they should not be appealing to or depict minors, or cross-promote activities of a retailer and a producer;
  • Placement—industry codes instruct that alcoholic beverage advertising and marketing should be placed in media only where the audience is reasonably expected to be over 21.
  • Promotion-specific issues—certain kinds of promotions involving alcohol beverages are restricted or prohibited in many states, such as giveaways of alcohol beverages, coupons for alcohol beverages, sweepstakes and contests involving alcoholic beverages, print and broadcast advertisements, exterior signage, point-of-sale materials, sampling and tasting programs, and public events.