TTB Speaks up on Social Media

After 9 long years of technological advancement in the internet age, TTB quietly released Industry Circular: 2022-2, updating its Industry Circular: 2013-01 on alcohol social media last week. As a longtime legal advisor on compliant alcohol marketing, I was very curious what direction TTB would go, since so much has changed in this space since 2013, when TTB had to explain to industry members that social media was not just a conversation among friends but was actually regulated advertising. In this post, I will remind readers what the old policy said, explain what has changed in the new policy, and point out what’s missing. 

What was in Industry Circular 2013-01? 

TTB’s previous social media industry circular went through the various categories of social media, citing such sites as Facebook, MySpace, YouTube, Friendster and Flickr, and explained exactly what mandatory information was required and where it must appear. Laughter aside for the Friendster references and TTB’s discussion of “fan pages,” it may be hard to remember, but this guidance was really helpful at the time. In summary, TTB explained that the definition of industry member advertising subject to their regulation is broad and includes social media, and as such, social media had to display all mandatory statements conspicuously and legibly per 27 CFR parts 4.62, 5.63, and 7.52, and the content was subject to TTB’s prohibited practices regulations in 27 CFR parts 4.64, 5.65, and 7.54. More specifically, the mandatory statements, including the name and address of the industry member responsible, the product’s class/type and ABV (spirits) had to be on: 

Home/profile pages on “Fan” pages on social network services (FB, LinkedIn, Friendster, MySpace, etc.) 

Profiles and within videos on video sharing sites (YouTube) 

Profiles of blogs and microblogs (Twitter, Tumblr) 

Included in links and QR codes 

Additionally, mobile apps were considered consumer advertising specialties, so only the brand name of the product (not the full mandatory information) was required per 27 CFR parts 4.62(c)(2), 5.63(e)(2), and 7.52(c)(2). 

What’s new with Industry Circular 2022-2? 

With TTB’s new circular, they reaffirm the previous guidance, and add some clarifications and additional categories of advertising: 

Mandatory information may be split up according to how consumers view the information. Name and contact information may appear in the profile/about section (note that recent updates now permit websites to qualify as addresses). Class, type and alcohol content could be in the “shop” or “products” section, where consumers would be expected to review that information. When space is limited, industry members can link to the full information, but not if it could be misleading - i.e., vodka with natural flavors cannot be shortened to vodka because that would be misleading. 

“Liking” prohibited content such that it shows up in your “feed” or equivalent is specifically prohibited. An example might be sharing health-related information that might be misleading (i.e., agave spirits are good for diabetes) that the industry member didn’t create, but is adopting as their own content by sharing it. 

Crowdsourcing and augmented reality are deemed advertising and subject to TTB advertising regulations such that responsible advertiser information is required, but in the case of augmented reality/QR codes, no mandatory information is required if the content is only accessible using label or ad that already contains the information. 

Social media influencers posting content to their own channels may be considered advertising that is subject to the mandatory information requirement, but this requirement may be satisfied with a link to the mandatory information. To determine whether the content qualifies as industry member advertising, TTB will evaluate whether an industry member contributed to the posts and whether the influencer was compensated for the endorsement.  

More TTB Guidance, Not in the Circulars 

It is worth noting that TTB has been doing much more monitoring of advertising lately, so expect them to add influencer marketing to their review. TTB updated their Alcohol Beverage Advertising landing page earlier this year in June to remind industry members of their free, voluntary advertising pre-clearance service at market.compliance@ttb.gov and to explain how they monitor advertising – through this pre-clearance service, referrals and complaints, and their own discoveries (internal selections for review). Note that if you decide to use the pre-clearance service, you may get an answer you or your marketing department does not like, so give yourself enough time to fix the content and know this is different than working with a lawyer, where you can choose not to follow the advice. 

TTB also updated their FAQs, highlighting NFTs, advertising retailers and health claims: 

AD1: Branded digital media items and NFTs may be subject to TTB’s advertising regulations if they are electronic forms of consumer specialty items, in which case just the brand name is required, not the full mandatory information. 

A28: Using social media to inform consumers where to find products or to promote a special event may be an impermissible thing of value if it results in exclusion per 27 CFR 6.151 through 6.153. TTB notes the exception in 27 CFR 6.98, permitting listing names and addresses of two or more unaffiliated retailers if the ad includes no prices and the listing of the retailers is inconspicuous. 

SUG5: TTB reminds those making claims about sugar content that sugar is not the only factor in determining the health of a product and not to make specific health claims. 

What is missing from TTB’s guidance? 

TTB did a great job updating its social media policy, but was careful not to weigh in on some of the thornier issues with digital marketing that are likely going to be more fact and state-specific, because they implicate state laws. For example, what are the rules when brands interact with consumers or retailers on social media? What else do brands need to know about working with influencers compliantly? And the elephant in the room: can alcohol brands use TikTok and how? Stay tuned for more in this series on social media.