Be Careful How You Use Social Media

Following on my last post (Five Trade Practice Tips and Traps), there was an update to the ABC law in the state of California that is worth noting, since it likely will affect a New York State brewery that intends to use social media in general, to have a website, and maybe to eventually distribute its beer in the Golden State. Even if a New York brewery does not plan to ever distribute in California, it’s still worth reviewing these types of advisories as they are issued in other states and have your social media folks keep track of them to keep in mind what’s okay and what may land you in an uncomfortable situation as you spread the good word on social media.

As state regulators become more and more “hip” to the activities on social media, they’ll keep addressing its use when it comes to tied-house and commercial bribery provisions. And that just happened, effective January 1, 2016, in California: the California ABC issued an Industry Advisory, which, among other things, addresses the “unauthorized gift to retailer” issues head-on.

The two-page document helps to clarify this murky area of the law and indicates that a non-retailer (i.e., a brewery) cannot take out a print ad or other type of media ad like television or radio and include the names and information of one or more retailers at which a consumer may purchase its products within the state. While not entirely groundbreaking, the prohibition of disseminating this information in traditional media is important to point out.

More importantly for the brewery of 2016 is that the California ABC takes the stance that tweeting, Instagramming and Facebook posting to your social media followers that very same information—in this case, names, addresses, web addresses and phone numbers—of two or more unaffiliated retailers who carry the brewery’s products is not a violation of the law in California. The criteria is that it must be a “direct communication” between the brewery and the consumer, and social media qualifies as a “direct communication” since the consumer must follow or seek out the information rather than just passively encounter it by reading the paper or listening to the radio.

The advisory, available at http://www.abc.ca.gov/trade/INDUSTRY%20ADVISORY_AB780.pdf includes additional information and limitations to keep in mind when designing graphics or crafting posts.

As always, you should consult with your attorney if you plan to launch a social media campaign, update your website or even make your first foray into the digital world. For example, some states require more than just two unaffiliated retailers to be disclosed, and other states require more than that. Counsel will keep you on the right track and help you construct some guidelines to observe when tweeting, posting and streaming, while still letting your creativity flow.

 

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Jackie Sudano