LAW & WORTDER - Trademark Law Unit

LAW & WORTDER: ADVERTISING LAW FOR CRAFT BEER

As with all things surrounding the world of alcohol, advertising and marketing for craft beer is highly regulated.  The first thing you need to know before embarking on a marketing or advertising campaign for your beer is the rules. First, you will want to check with the alphabet soup of federal agencies: the TTB, FTC and FDA.  Then you will want to check state and local laws.  While federal law generally trumps state and local laws, states have the power to make more restrictive rules around marketing and advertising.  Finally, if you are a member in good standing with the Brewers Association, you will want to review their Marketing and Advertising Code to ensure compliance.

Federal Advertising Regulations

The federal advertising regulations can be boiled down to six categories:

  1. Mandatory statements
  2. False or misleading statements
  3. Improper health statements
  4. Statements inconsistent with labeling
  5. Improper statements relating to alcoholic strength; and
  6. Other prohibitions

Let’s take a closer look at each of these:

Mandatory Statements

TTB requires the advertiser of the beer to correctly list the name, city and state of the advertiser.  Typically, the advertiser is the brewery, but what if you are a contract or gypsy brewery or are operating as an alternating proprietorship with another brewery?  If you have incorporated as an LLC or corporation, your corporate paperwork will most likely list a principal place of business to comply with this requirement.

Advertising must also list the class or style of beer advertised, e.g. lager, ale, pale ale, stout, porter, etc.  These mandatory statements must be conspicuous, legible and clearly part of the advertisement, i.e. you cannot list them in fine print on the advertisement.

False or Misleading Statements

Craft breweries need to be careful about statements made about the identity, origin or other characteristics of the beer.  For example, for a whiskey to be classified as a bourbon, it must be made in the United States.  In order for it to be classified as a Kentucky bourbon, it must be manufactured within the state lines of Kentucky.

Improper Health Statements

TTB also prohibits many types of health statements such as claiming something improves memory or prevents headaches as well as referring to a beer as being gluten free, natural or organic.  In addition, breweries need to be cautious about making calorie or carbohydrate claims on their website without an accompanying average analysis.  As of May 7, 2018, the FDA requires restaurants with 20 or more locations to include nutritional information for regular menu items, including beer.  This means that if you distribute your beer to any chain restaurant you will need to provide full nutritional information on your beer.  The Brewers Association website has helpful information about calculating nutritional information: https://www.brewersassociation.org/business-tools/selling-your-beer/fda-menu-label-requirements-beer-nutrient-database/

Statements Inconsistent With Labeling

Prior to releasing your beer onto the market, you need to get COLA (Certificate of Label Approval) from the TTB.  The label that ends up on your bottles or cans must be consistent with the label submitted for COLA approval.  Violations might include using a label that is a different size than the one submitted for COLA approval.

Improper Statements Relating to Alcoholic Strength

Using descriptors such as strong, full strength, extra strength, high test and high proof are prohibited unless required by state law.  However, you can report the ABV of the beer, but you must be sure it is accurate.

Other Prohibitions

This catch-all category is ever evolving and includes prohibitions against situations such as taste tests, flags, seals, coats of arms, crests and other insignias unless authorized, subliminal advertising, confusion of brands (i.e. issues regarding trademark protection), and obscenity or indecency.

Brewers Association Marketing and Advertising Code

In order to maintain membership in the Brewers Association, brewer members must comply with additional advertising and marketing regulations.  The BA states that “beer marketing should be representative of the values, ideals and integrity of a diverse culture and free of any derogatory or discriminatory messages or imagery”.  Some highlights of the BA marketing and advertising code include:

  • Brewer members shall portray beer in a socially responsible and respectful way
  • As of April 2017, the BA has prohibited brewer members from using sexually explicit, lewd or demeaning brand names, language, text, graphics, photos, videos or other images that reasonable adults would find inappropriate for consumer products offered to the public. Any beer name that does not meet the code requirements and wins a World Beer Cup or Great American Beer Festival award will not be read on stage nor will it be promoted in BA materials and the brewery and beer will not be permitted to use the competitions’ intellectual property in their marketing.
  • Brewer members should not disparage competing beers
  • Brewers should require disclosure of a viewer’s date of birth with a message indicating that the brewers’ products are intended only for those of legal drinking age at the entry of their website.

It is always recommended to seek the advice of a local alcoholic beverage or regulatory attorney in your area before spending money on marketing or advertising for craft beer.  It is much more costly to correct a mistake than to pay for the peace of mind that you have not made one in the first place.