There was a time that beer was the only alcoholic beverage being advertised anywhere. Now, you see alcohol of all kinds being advertised everywhere. That prompted a GM to send us a question about the rules to advertise spirits. Are there any anymore? Do you have to watch what you say in an ad? Here's broadcast attorney John Garziglia with the answer.
John Garziglia:
Surprisingly, there are no federal regulations on beer, wine and liquor radio advertising. The broadcasting industry and the sellers of alcoholic beverages themselves largely self-regulate such advertising.
The Federal Communications Commission has no alcoholic beverage advertising rules or regulations other than the rules that apply to all advertising such that there must be accurate sponsorship identification. For instance, when it is the local beer distributor running spots rather than the brewery itself, a sponsorship ID tag is often required at the end of the produced spot for an accurate sponsorship identification.
Until the early 1980s when it was eliminated as a potential restraint on trade, the broadcasting industry through the NAB code had in its standard of good practices a prohibition on the advertising of hard liquor for member stations. On the advertiser side, in 2003 the Beer Institute imposed self-regulation with a commitment not to broadcast advertising in any radio program in which 30% or more of the audience is under the age of 21.
The Beer Institute self-regulation is the responsibility of advertiser and not radio stations. There would be no direct FCC regulatory ramifications from a radio station taking alcoholic beverage advertising even if its audience was predominately under 21.
As with any advertising, radio stations must remain aware of state and local laws. In the area of alcoholic beverage sales and consumption, the United States continues with a patchwork of state and local laws mostly directed at the advertiser. Some of these restrictions, such as bans on happy hour ads, may impact how beer, wine and liquor may be advertised in a particular locality.
It is worth noting that alcohol consumption and tragedies often go hand-in-hand. As with any advertising, if a horrible event was to occur and somehow a claim could be made that pervasive or reckless radio advertising of an intoxicating product, particularly to underage or vulnerable persons, was done by a deep-pockets broadcaster without regard for consequences, a radio station could find itself defending a lawsuit no matter how meritless such a lawsuit might ultimately be determined to be.
Finally, it must be mentioned that any kind of significant advertising of products generally viewed as harmful by a portion of the population might form the basis for an FCC objection at license renewal time. While it is doubtful that such an objection would do anything more than delay the grant of a radio station license renewal application, having the objection filed and answering it is likely something radio stations would rather avoid.
Therefore, to the extent that advertising is run that the public thinks should be limited, a radio station does take a risk that, at license renewal time, members of the public or public interest groups, will voice their opinions to the FCC. While it is unlikely that beer or wine advertising on a professional team sports show would inspire such objections, running beer commercials in a high school sports broadcast or commercials for alcohol beverages that are marketed to a younger demographic, could provoke such license renewal objections. Thus, just because there are no specific FCC restrictions, that does not mean that some restraint by radio stations in the running of alcoholic beverage advertising is imprudent.
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John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com. Have a question for our "Ask The Attorney" feature? Send to edryan@radioink.com.
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