How to Be Legal on Social Media with Alcohol Beverage Attorney, Brian Simas
In today’s episode, we are talking with Brian Simas, an Alcohol Beverage Attorney based in Los Alamos, California. Brian provides experienced counsel to alcohol beverage and agribusiness industry stakeholders, with emphasis on industry commercial and real estate transactions, mergers & acquisitions and alcohol beverage licensing / trade compliance.
Having been a Compliance Manager at my previous job at a vineyard management company, I am often concerned about ensuring that the tips I’m giving for marketing on social media are not only effective at selling wine but are also legal.
It was natural, therefore, that I would want to ensure I was bringing an attorney on the podcast who specializes in Alcohol Beverage Law!
In addition to his practice, Brian is a Professor in the Wine and Viticulture Department at Cal Poly San Luis Obispo where he teaches an upper-division course in wine law and compliance. Brian previously taught wine law and compliance as an Adjunct Professor of Law at Pepperdine University School of Law and regularly speaks at symposiums, universities, and continuing education seminars on alcohol beverage law.
In today’s episode, Brian and I talk about how wine brands can stay legal while marketing their wine on social media and give practical tips on some social media best practices.
Let’s dive in!
The Ground Rules for this Discussion:
In this episode, Brian focuses on the rules that apply specifically to wineries in California and how they market on social media.
The Agencies that Regulate this are:
- The Federal TTB (Alcohol Tax & Trade Bureau)
- The Federal Trade Commission
- The California ABC (Alcohol Beverage Control)
These Rules are Designed to Do 2 Things:
- To protect consumers
- And to deter unfair business practices
References in this Episode to look up:
- Labeling & Advertising of Wine: 27 CFR Part 4
- Prohibition | Tied House Laws:
- 27 CFR Part 6
- 27 CFR 6.98
- California Business & Professions
Create a Social Media Policy to include in your Marketing Strategy. This policy can include things like:
- Ensure you include the name of your winery, and your city & state in all of your social media about sections, bios, and profiles.
- An age gate or at least "Must be 21+ to Follow" in your bio
- You can’t use the word “free” in any of your advertisements.
- You can say “included” or “buy 1, get 1 for a penny,” but you can’t say “free.”
- Don’t promote space as a “family atmosphere” because it would be seen as promoting underage drinking.
- No pictures of kids or anyone under 21 on your social media
- Don't make any false, misleading, or untrue statements
- Don't be disparaging to a competitor
- Don't have any statement or design that indicates that your product is intoxicating
- Ex: you can’t say something like “this wine packs a punch” because that is implying that the alcohol will have a particular effect on you.
- Don't post anything that would be considered “obscene” (such as nudity)
- Don't make a misleading health statement (but the reality is that you can’t make ANY health statement) about your product
- For example, you can’t say that red wine is good for your heart or that the tannins in your wine can inhibit COVID-19
- Tied House Rules: You can’t advertise or "provide a thing of value" for retailers & restaurants
- You can LIST two or more UNAFFILIATED retailers or restaurants, using their Name, Address, Phone Number, & Internet Site BUT:
- You cannot identify the retail price of the wine at those retailers or restaurants
- You cannot use any laudatory language about the retailer/restaurant
- Example: You can’t say, “find our wine at Tom’s Takeout, Tom’s is our favorite”
- You CAN say, “find our wine at Tom’s Takeout: [Address, Phone Number, Etc]. You can also find our wine at Crabby Patties: [Address Phone Number, etc.]”
- Only in the case of a permitted event at the retailer (such as a winemaker dinner) can a winery include photos (NOT VIDEOS) of the retailer. You have to list the time, date, and location of the event and you can repost the retailer’s post about the event as long as the post complies with the rules of this exception.
- Reposting: You have to think about reposting as if YOU created the original post. So all reposting, including reposting to Instagram Stories, must comply with TTB, ABC, and BPC regulations.
- Endorsement Policy:
- If you are paying someone to advertise for you, the TTB and ABC will look at that advertisement as an extension of your company’s advertising, so all of the same rules will apply. However, the FTC does have rules that are related to endorsed advertisements. The FTC requires that any endorsed advertisement be disclosed in clear language.
- Must include language like “Ad for [Brand Name]” or “Paid Promotion for [Brand Name]” or “Paid Partnership with [Brand Name]”
- You can use #ad but you need to include who the paying party is right next to it, so it would have to say #ad [Brand Name]
- But you cannot simply use #partner without also including that this is a paid promotion for [brand name]
Connect with Brian:
Other Useful Resources:
STAYING LEGAL WITH SOCIAL MEDIA by Tracy Genesen, Vice President and General Counsel, Wine Institute | Direct to Consumer Wine Symposium 2019 | January 24, 2019
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