Greenspoon Marder Hospitality, Alcohol & Leisure Blog: The FTC and Some Advice

Jun 6, 2022

By: Louis J. Terminello, Esq. and Bradley Berkman, Esq.

Yes, the first amendment protects commercial speech, including the advertising of alcoholic beverages. Broadly speaking, if commercial speech is truthful and not deceptive, business entities have the same protections, generally, under the first amendment as people. As the reader knows by now from these blog posts, beverage alcohol is like no other commodity. There are in fact federal labeling guidelines (TTB and FDA regulations) and state and municipal advertising ordinances that must be followed, but arguably limit the first amendment freedoms of purveyors of the drink – those specific concerns will be left for another day. This blog will focus on the industry created voluntary guidelines promulgated by certain industry actors and their adoption by the Federal Trade Commission (FTC) as benchmark standards, particularly with regard to advertising that underage drinkers may be exposed to.

First, why write about this issue? The answer of course is the internet. YouTube, TikTok, Instagram, and various social media platforms have opened the proverbial Pandora’s box of speech concerns and beverage alcohol as more and more influencers, celebrities, and star power turn to these media forums to promote their own or beverage alcohol brands of others. To the wise old ones who have never visited these social media platforms, you likely know, but just in case, that these spaces are fertile ground for the young impressionable mind as all good social media platform advertisers already know. We’re now in dangerous territory and the aforementioned forums will be scrutinized more heavily by beverage alcohol regulatory authorities and the alcohol control inclined public.

Enter the Distilled Spirits Council (DISCUS), the Beer Institute, and the Wine Institute (the “triumvirate’), all of whom have drafted and adopted voluntary and self-regulatory guidelines. Sparing the reader all of the details, these guidelines provide a useful and “open to interpretation” framework of responsible behavior for brand owner advertising. These self-imposed and voluntary standards provide a useful framework for responsible advertising. The FTC openly states that it formally and informally monitors compliance with these guidelines and the commission could bring an action against the advertiser for unfair or deceptive advertising. FTC encourages the public to report any beverage alcohol advertising which may be in violation of the “triumvirates” guidelines. TTB, FDA, and local alcohol regulatory boards are the front-line defense against trade practice and tied house violations by industry actors. Admittedly, the business of America is business, but a social conscious is required. Dollars must be balanced against safety and constitutional privileges and restrictions.

The FTC is another gatekeeper beverage alcohol advertisers need to be aware of and concerned with. The voluntary guidelines exist and are more than mere platitude and sound compliance programs should be created by today’s brand owners who are pushing the envelope. TTB, FDA, and FTC scrutiny will surely follow. The time is now to be prepared.

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About Greenspoon Marder

Greenspoon Marder LLP is a full-service law firm with over 240 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has upheld a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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Greenspoon Marder Hospitality, Alcohol & Leisure Blog: The FTC and Some Advice

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