Social Media is the new land of opportunity for all in manufacturing and retail. Facebook and Twitter alone allow restaurants, hotels, and bars unprecedented conversation with their customers. The access to these consumers is in real time and moves beyond the capabilities of any standard brand website. Understandably, motivation to interact with consumers by offering promotions on social media sites is high, especially during periods when traffic is down due to economic conditions, and everyone’s focus is on driving traffic and spending.
Hotels and restaurants use social media to drive loyalty deals and promotions generally around all aspects of the business. In the restaurant context, marketers see natural opportunities using social media to promote new menu items, special pricing, and food and beverage pairings, for example. The opportunities in social media are many and they are exciting, but those who use this platform to promote alcohol need to understand that alcohol continues to be a regulated product and must be marketed as such, even in the social media context. Many people mistakenly believe that because social media operates through the internet, social media is not subject to some of the same alcohol beverage laws and regulations which apply to more traditional means of marketing alcohol beverages. This is in fact not the case: this “new world” is governed by “old laws,” and as operators and counselors to the industry, we need to learn to work within them. Offering consumers a bucket of beer on Facebook is not the same as offering them a bucket of chicken wings. Here are some basic pointers and issue spotters to get you started.
First Protect Your Brand
When building a social media identity for your brand, protect your own intellectual property and avoid infringing the intellectual property of others. This is a threshold legal issue and is important in any social media campaign, even if alcohol beverages are not involved. If you are building a fan page or a Twitter page, consider the graphic or any tag lines you use carefully. Make them consistent with your branding in other media and make sure they are protected. Be very careful that you do not inadvertently infringe upon the intellectual property of others. Twitter, for example, has an “impersonation” policy, and also has a policy against “name squatting.” Along the same lines, you may wish to perform periodic searches to monitor against third parties improperly imitating your brand in social media.
Multi-State Promotions Require Multi-State Legal Analysis
When planning an alcohol promotion, consider whether it is the type of promotion which would be regulated in traditional media. For example, is it a sweepstakes, contest, coupon, happy hour deal, or similar? Does it have elements of these things? If so, remember that multi-state laws and regulations on promotions will still be relevant in the social media world. Social media websites may be a completely new way to market, but promotional rules will still apply. When planning advertising, sweepstakes, coupons, or other consumer premium offers, make sure that your campaigns comply with all applicable state laws and regulations. If you operate a chain of hotels or restaurants, bear in mind that even though offers you plan to run through social media are national, they may need to be tweaked for consumers in different states if the same offers are not legal for all due to state law variations. For example, if you intend to offer your restaurant’s Facebook fans happy hour specials at the bar between 5:00 and 7:00 p.m., you need to recognize that some of the fans live in states where this activity is legal, and some live in states where it is not. As a result, you may need to consider technical tweaks to your social media campaign to create different legal offers for different consumers, i.e., appetizer specials only for some. Alternatively, you may wish to tailor your offers so as to be consistent with the legal analysis, resulting in a “one size fits all” approach.
Direct Social Media Promotions Involving Alcohol to Legal Age Consumers Only
If you promote alcoholic beverages via social media, be mindful of your target audience. Social media websites are open to consumers under twenty-one years of age, and therefore these individuals may be exposed to marketing of products they may not buy legally. Build safeguards into your pages, and limit access to those sections involving alcoholic beverages to the twenty-one and over set.
Recently, the Distilled Spirits Council of the United States (“DISCUS”) published a Guidance Note on Responsible Digital Marketing Communications which provides standards for industry when advertising alcohol beverages through mobile and digital means, including social media. DISCUS outlined several basic principles for responsible use of social media which are helpful to suppliers, retailers, and unlicensed advertisers of alcoholic beverages. The basic principles articulated by DISCUS include, among other things: (1) limiting digital marketing of alcohol beverages to media where 71.6% of the viewing audience is of legal purchasing age; (2) requiring the user to affirm that s/he is of legal purchase age before allowing the user to proceed to the alcohol beverage advertisement; (3) monitoring user-generated content on a regular basis; (4) placing warnings about forwarding content to non-legal users.
These general principles can be implemented in a variety of ways. For example, alcohol-related content on social media should contain a pop-up or other gatekeeper mechanism so as to require viewers to verify that they are of legal drinking age before proceeding to the content or offer. This is currently industry standard on the websites and microsites of alcohol beverage suppliers, and should be integrated into social media sites representing these brands, or other sites which advertise alcohol beverages generally. Once the “gate” is opened and users enter, site owners and operators (including the administrators of social media pages) should monitor the conversation for the purpose of responding to and removing inappropriate content about minors drinking or intemperance. Finally, carry through age-gating to any “forwardable” content in the form of a download, “share”, or “like.” Your alcohol-related social media advertisements are intended for legal users only, and so there must be a mechanism in place to prevent a legal user from forwarding content to a non-legal user. Usually this takes the form of another pop-up requesting confirmation of legal age.
Before you use social media marketing to communicate with your fan base, make sure that any alcohol-related content is legal, contains appropriate disclaimer language if needed, and does not inappropriately target minors.
Promote Responsible Consumption and Protect Your Image
Finally, any social media campaigns involving alcohol should promote responsible consumption, not only through offers, but also in accompanying photographs, slogans, and postings, either by your company or by your fan base. Remember that the social media pages maintained by your company are available for the world to see, including the plaintiffs’ bar! In the unlikely event that your restaurant or bar becomes a defendant in a dram shop litigation matter, your social media pages will become exhibits. Therefore, any offers or representations of your establishment should reflect the responsible service practices of your business and should not promote overconsumption in any way. Furthermore, and as recommended by DISCUS, businesses should also consider monitoring any fan/consumer postings carefully and adopting an internal policy for how to remove and address any improper content or postings.
In addition to widening the boundaries and the reach of advertisers, social media has also changed the course of discovery in litigation dramatically. Social media is in a sense a free discovery tool, and it goes both ways. Consider the following hypothetical. John Doe sues ABC Restaurant for dram shop liability, claiming that the employees served him while knowing that he was obviously intoxicated. John Doe was involved in an automobile accident after leaving ABC Restaurant, and claims that he was injured and out of work for three weeks. John Doe presents evidence including a printout of ABC Restaurant’s Facebook page. The Facebook page shows posted content from patrons of ABC Restaurant who “like” it there, including postings that discuss how the fans got sloshed at ABC and corresponding photos which show them slumped over the bar. ABC Restaurant’s attorney is disappointed that her client did not monitor these harmful posts and remove them so as to show that the restaurant does not approve of this kind of behavior. She makes a note to review ABC Restaurant’s compliance practices with the management and to help the company develop a social media policy. Then, she decides to review John Doe’s Facebook page to learn more about his activities. Incredibly, she finds a post from John four days after the accident with a photo of John looking handsome and a status which says “[m]y boss is a slave driver man, he gave me an extra shift at work today. I am going to tie one on tonight at Bango’s Bar.” Relieved, ABC Restaurant’s attorney confronts John Doe at his deposition about his claim that he was out of work for three weeks, and the case ultimately is dismissed.
Social media has now become mainstream and has changed the way on premises retailers speak to their customers with measurable results. As social media evolves further, the legal landscape will need to change to adapt to this new marketing force. Stay tuned!