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The Value of Data and Artificial Intelligence in the Alcohol Industry

by Alva C. Mather and Michelle Draper | Nov 7, 2024 | Advertising and Marketing, Trade Practices

Members in the ever-evolving alcohol industry are leveraging data and artificial intelligence (AI) to drive innovation, enhance customer experiences, and optimize operations, all in an effort to increase efficiency and profitability in the market. There are several ways AI is being used to transform this industry:

Marketing and Insights

Data is highly valuable and can provide a better understanding of consumer behavior, allowing companies to design their consumer approach in a more targeted manner. Purchase and demographic data allow companies to clearly identify trends and performance to improve their products and the way they communicate with consumers. This information is sometimes shared between suppliers and wholesalers to identify the best market opportunities for particular products. AI can also help track customer orders and provide recommendations for future ordering processes.

This same information can be used in an analysis to highlight emerging customer preferences, providing data-based feedback to companies to help them plan their production schedules, purchases, marketing plans, and innovation projects.

Customer Interaction

Industry members are increasingly turning to chatbots to answer frequently asked questions, shorten customer wait times, and reduce company workload. Virtual programs are also being used to provide personalized recommendations. For example, Diageo’s What’s Your Whisky program analyzes responses to specific questions and uses the data to make a whisky recommendation that is likely to match customer preferences.

Regulatory Compliance

While it may seem counterintuitive to use AI in the alcohol industry due to the large volume of varying regulations and industry guidelines, it can still be a useful tool, particularly for complying with reporting and payment deadlines, which may reduce the burden on your compliance team. However, there are key considerations when using, selling, or purchasing these tools:

Data Protection

With US states increasingly passing more comprehensive data privacy laws, it is vital to work with your information technology team and data specialists to maintain the security and anonymity of the data your company uses. For your convenience, McDermott’s global privacy and cybersecurity team has developed an interactive map tracking the rapidly changing state consumer privacy laws.

Value

Data and AI undoubtedly have and will continue to have intrinsic value; however, it is difficult to quantify this value given the intricacies and varying degrees of use. It is important to consider how the value of data should be accounted for particularly when sharing, purchasing, or selling data or AI tools across tiers to avoid running afoul of tied house restrictions.

Transparency

Finally, once you have clear goals for using AI or data, make sure you understand the rules and responsibilities, particularly regarding the use of personally identifiable information. Always be transparent about your collection, use, and disclosure of AI or data, and ensure your privacy policies are up to date.

We expect to see more industry guidelines develop [...]

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Growing Regulatory Focus on ‘Crossover Alcohol Products’

by Alva C. Mather | Jul 10, 2024 | Advertising and Marketing, Beer, Malt Beverages and Cereal Beverages, Distilled Spirits, Non-Alcoholic Beverages, Non-Beverage Alcohol, Wine and Cider

As more companies – including businesses with and without experience producing alcoholic beverages – move to leverage their brands and brand equity across the beverage spectrum, regulators, trade associations and the companies themselves are focusing on ways to responsibly label, advertise, market and display these products to avoid consumer confusion and potential sales to minors.

Crossover alcohol products are generally categorized as alcohol beverages that use the products and intellectual property (e.g., brand names, logos) of a preexisting non-alcohol brand. While not legally defined (yet), such products include Dunkin’ Spiked Original Iced Coffee, Eggo Brunch in a Jar, Lipton Hard Iced Tea and SunnyD Vodka Seltzer, among others. As illustrated by these examples, products such as Lipton Hard Iced Tea leverage the non-alcoholic Lipton Iced Tea branding for a new product in the alcohol space.

As crossover alcohol products have become more prevalent across the market, state regulators have started taking notice and providing guidance to alcohol producers as to how to assure these products are not “false or misleading,” as defined by alcohol regulations, or tend to induce minors to drink the alcoholic product either through the products’ labels, packaging or store-display locations. The Commonwealth of Virginia, in particular, has taken the lead through the issuance of Circular Letter 23-01, which provides guidelines for alcohol producers as they develop these products. These guidelines focus on the following, among other issues:

Ensuring that the crossover product clearly indicates the type of alcohol it contains, with such information visible in at least three to six different locations.
Ensuring that the sizes of the alcohol references and warnings are sufficiently large and noticeable in comparison to other writings on the product label.
Ensuring that any and all changes to product labels, containers and secondary packaging clearly distinguish the crossover products from the original non-alcoholic products so as to prevent consumer confusion; such changes may involve the color palette, font type, imagery, placement of words, images and descriptions, or background elements.
Ensuring that secondary closures, such as foil lids, plastic wrapping, lip guards, stickers or other “child-proof” packaging, are present, to prevent accidental consumption by a minor.

Recently, a coalition including the Distilled Spirits Council of the United States (DISCUS), Wine & Spirits Wholesalers of America (WSWA), FMI – The Food Industry Association, and the National Association of Convenience Stores (NACS) (representing the three tiers of the industry: suppliers, wholesalers and retailers), issued a joint commitment related to the responsible marketing and merchandising of crossover alcohol products. Similar to Virginia’s guidance, the coalition is focused on assuring that these products are not confused for their non-alcohol counterparts and do not appeal to those under the legal purchase age, based on the appeal of the underlying brand. Accordingly, the coalition looks to alcohol producers to commit to responsible production, packaging and marketing of crossover alcohol products by:

Adhering to responsible advertising codes, such as the Distilled Spirits Council Code, to ensure these [...]

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So, You’ve Been Sued in a Labeling Class Action. Now What?

by Daniel Campbell and Alva C. Mather | Apr 1, 2024 | Advertising and Marketing, Beer, Malt Beverages and Cereal Beverages, Class Action, Distilled Spirits, Litigation & Arbitration, Seltzers, THC Beverages, TTB COLAs and Formulas, Wine and Cider

Many alcohol beverage industry clients are faced with lawsuits attacking product labels. These lawsuits can be frustrating for clients, particularly when the labels at issue were previously approved by the Alcohol and Tobacco Tax and Trade Bureau (TTB). But approval by the TTB does not insulate a company from a lawsuit under various state consumer protection and unfair trade practices statutes.

Try as companies may, even products that purport to conform with US regulations can still be characterized as “misleading” and “deceptive” by crafty and ambitious plaintiffs’ lawyers across the United States. Making matters worse, these lawsuits are typically styled as putative class actions, meaning the cases are brought by one or two alleged purchasers of the product, suing the company on behalf of all US purchasers of any allegedly deceptive product produced by the company, which makes both the defense of these suits as well as the potential damages quite costly.

An entire cottage industry of plaintiffs’ lawyers in the US focuses on just these types of putative class actions targeting the food, alcohol, beverage and packaged goods industries. Indeed, they file hundreds to thousands of new cases each year. So, what should a company do when facing allegations that a product label is deceptive or misleading?

In this post, we answer that question and provide an overview of the typical process in one of these cases. We also offer some practical tips to best protect your company if you are facing a threat of a lawsuit or if a class action lawsuit is filed against you.

BEFORE THE LAWSUIT IS FILED: PRE-SUIT DEMANDS

Many plaintiffs’ lawyers focused on suing alcohol industry clients send pre-suit demand letters, or letters asking for label changes and lofty payments in exchange for the plaintiff’s lawyer not filing a lawsuit. While one primary purpose of the pre-suit demand letters is to attempt to extort or extract a settlement from a company, there is another common purpose to these pre-suit demands. Many state statutes either require pre-suit notice or otherwise increase the types of recovery a plaintiff can pursue in a lawsuit if the pre-suit notice is served, such as in California.

If you receive a pre-suit notice demanding changes to your product label and/or payment of money, you should immediately engage a lawyer to step in and represent you. Additionally, a pre-suit notice often includes a demand to preserve documentation and evidence related to the allegations in the demand letter. If such documentation is not preserved, that can create significant issues for companies in a lawsuit.

The pre-suit notice period also offers an opportunity to persuade the plaintiff’s lawyer that there is no good faith or valid cause of action based on the allegations in their letter. To the extent those efforts are successful, you may avoid a lawsuit altogether. To the extent there is disagreement about the validity of the allegations, the notice period allows time to negotiate a pre-suit resolution on an individual basis which can be much cheaper than defending [...]

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Tips for Alcohol Suppliers Utilizing Social Media

by Lesli Esposito and Alva C. Mather | Jan 22, 2024 | Advertising and Marketing

In light of the Federal Trade Commission’s (FTC) 2023 revisions to its Endorsement Guides, it is essential to ensure that your business is compliant. While the alcohol industry is known for product innovation, the industry is also embracing innovation on the marketing and advertising front, most notably with the use of social media. Given the FTC’s recent announcements and enforcement actions, any business marketing their products via social media, influencers or endorsements, including alcohol advertisers, should be aware of basic requirements. Below are recommendations based on that guidance to help ensure your company keeps its social media activity compliant.

Third-Party Media Content: Endorsement Requirements
- The endorser is subject to the same rules and obligations as the industry member. In other words, the alcohol rules that apply to suppliers advertising alcohol also apply to the endorser.
- Endorsements cannot convey expressed or implied claims that would be deceptive if the advertiser made them directly.
  - For example, a post can be false or misleading if an influencer presents health claims associated with consuming the product.
- All claims made through endorsements (express or implicit) must have adequate substantiation.
- Endorsements must reflect the honest opinions, findings, beliefs or experience of the endorser.
- If the ad represents that the endorser consumed the product, they must have been a genuine user.
- The endorser’s audience should be at least 73.8% 21 years of age or older.

Third-Party Media Content: Disclosure Requirements
- Material connections must be adequately disclosed on all social media endorsements.
  - Material connections include any financial, employment, personal or family relationship with a brand (e.g., receiving free product, free admission to an event, swag or anything of value).
  - Note posts from employees and the requirements that may be triggered in the event they post about your product.
- Adequate disclosure includes the following:
  - It requires the connection to be clear and conspicuous (i.e., it “can’t be missed”).
  - It can be satisfied with “#ad” or other hashtags that sufficiently convey the material connection (such as #advertisement, #sponsored, #paid ad, #promotion).
  - You must display it before “clicking more” on the post, which is typically within the first two or three lines. However, a best practice is to place the disclosure at the beginning of the post.
  - It requires the disclosure to be “standing alone” in the endorsement (i.e., not buried within the post and not buried in a string of hashtags).

Tips When Drafting Endorser/Influencer Agreements
- Incorporate appropriate provisions in agreements with influencers and celebrities.
  - - Include a description of the content the influencer will be creating, including timing, mentions and aesthetics. Ensure you understand not just what the endorser or influencer plans to say but also what they plan to do (actions).
    - Include the type, form and frequency of the posting [...]
      
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Contracts Corner: Sponsorship Agreements

by Alva C. Mather | Jan 10, 2024 | Advertising and Marketing

Sponsorships continue to be one of the alcohol beverage industry’s primary methods of promoting brands to drinkers. In professional sports alone, alcohol beverage brands contributed $480 million in sponsorship revenue across the four major professional sports leagues during the 2022–2023 season, according to a SponsorUnited study. As suppliers look to better target audiences via sponsorships, it’s important for industry members looking to enter into a sponsorship relationship, as well as those hoping to engage an alcohol beverage brand as a sponsor, to understand how the regulation of the alcohol industry impacts these relationships and the contracts that solidify them.

The Federal Alcohol Administration (FAA) Act prohibits an industry member (a supplier or wholesaler of alcohol beverages) from inducing a retailer to purchase a particular product to the exclusion of competitive products. See 27 U.S.C. § 205. An “inducement” may include a partial ownership stake in a retailer, money, free goods or other “things of value” provided to a retailer. The “exclusion” element requires the Alcohol and Tobacco Tax and Trade Bureau to show a potential real-world impact (i.e., the inducement results in a retailer purchasing less of a competing product than it otherwise would have, and the inducement places or threatens to place a retailer’s independence at risk) before a violation is found.

Sponsorships in other industries often involve a commitment that the brand paying sponsorship dollars will be the exclusive offering of a team, venue or event, or at a minimum, require that a particular brand be offered or available to consumers as part of the sponsor benefits. In the alcohol space, an industry member paying a retailer in exchange for the retailer’s commitment to serve the supplier’s brand(s) of alcohol beverages, often called “pouring rights,” typically satisfies both elements necessary to find a violation of the FAA Act: that the sponsorship fee is a thing of value, and it leads to the exclusion of competitive products.

Sponsor benefits should not include a commitment that a retailer purchase or not purchase a particular brand or brands of alcoholic beverages. Because of restrictions on the flow of money from suppliers to retailers, most sponsorship agreements involving an alcohol brand are between an industry member and a third-party unlicensed entity, not the entity holding the license to sell or serve alcohol at an event or within a venue. However, conduct that is prohibited for an industry member to engage in directly is also prohibited if undertaken indirectly using a third party as a pass-through entity. Accordingly, the entity selling sponsorship rights should represent and warrant the following:

It does not hold a license to sell alcohol at retail.
The funds paid under the terms of the agreement will not be passed on to a retailer.
Nothing contained in the agreement is intended to require or prohibit any retailer or concessionaire from purchasing or not purchasing a particular brand or brands of alcoholic beverages.

As we support clients in negotiating sponsorship agreements and understanding the scope of sponsor [...]

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The Fine Print: Avoiding IP Pitfalls in Unlicensed Fonts

by Shawn Helms and Caitlin Howe | Oct 16, 2023 | Advertising and Marketing

When developing a new brand or product, creatives often give considerable attention to avoiding intellectual property infringement. Trademark lawyers are similarly vigilant to avoid infringing another company’s mark. However, when a company creates its labeling and marketing materials, they tend to not give enough thought to the issue of fonts. The fonts that a beverage company uses to create its website, print advertisements, bottling, labeling, and packaging may be protected by copyright and the company may not have appropriately licensed them. If a company uses a font without the permission of the owner of that font, or outside of the scope of that company’s license, that company could be subject to a claim of copyright infringement.

Typeface Versus Fonts

First, we need to draw a distinction between two terms that are often used interchangeably: fonts and typeface. A typeface refers to a set of characters that share the same design or style. Typeface is the collective name of a family of related characters (e.g., Times, Arial and Garamond). It describes the overall look of the characters—their design and aesthetics. A font, on the other hand, is a computer program that is used to create text characters. Fonts are often installed into, and made available through, a word processing program such as Microsoft Word or design programs such as Adobe InDesign. In the digital era, the distinction between these two terms has become blurred, as many people use “font” to refer to what is technically a typeface.

Copyright Protection

In the United States, typefaces themselves are not protectable under copyright law. Code of Federal Regulations, Ch 37, Sec. 202.1(e) states: “[t]he following are examples of works not subject to copyright. . . (e) Typeface as typeface.” In addition, the Copyright Office’s Compendium of US Copyright Office Practices states that “[t]he Office cannot register a claim to copyright in typeface or mere variations of typographic ornamentation or lettering, regardless of whether the typeface is commonly used or unique.” Typefaces may be eligible for a design patent, which protects new, original and ornamental designs. However, design patents have significant limitations, must meet very specific requirements and are rarely used.

A font, on the other hand, is computer software that is protectable under copyright law because it is an original work of authorship in the form of software code. Typefaces cannot be copyrighted, but the font software used to display them can be. This distinction is crucial because it separates the visual design of characters (typeface) from the underlying code that instructs computers and printers how to reproduce those characters (fonts).

Font Infringement and Enforcement

Type foundries have made available a number of fonts that are free (often referred to as open source fonts) or are otherwise in the public domain. However, if a font is copyright protected, then copyright owners can sue companies and others who use that font without a license for copyright infringement, and a finding of copyright infringement can result in substantial liability. A copyright owner can seek actual [...]

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Key Takeaways | Seeing Around the Corner: Alcohol Industry Updates

by Alva C. Mather, Lesli Esposito and Rachel Gartner | Oct 4, 2023 | Advertising and Marketing, Food Safety and FDA, TTB COLAs and Formulas

In this webinar, Alva Mather, Lesli Esposito, Rachel Gartner and Nichole Shustack teamed up to unpack how recent regulatory shifts will significantly affect alcohol companies and distributors. They discussed product innovation in the spirits industry, “zero-proof” beverage options and how companies are leveraging the benefits of artificial intelligence for advertising and marketing.

Top takeaways included:

Introducing a nonalcoholic beverage may mean getting to know a new federal agency. For alcohol brands looking to launch a zero-proof or nonalcoholic beverage, the Alcohol and Tobacco Tax and Trade Bureau (TTB) may not be the only federal agency regulating your product. The Food and Drug Administration (FDA) oversees the safety and efficacy of various consumer products, including nonalcoholic and conventional beverages. How a product is manufactured (e.g., dealcoholized products versus products that never contain alcohol) will play an important role in determining how a product is regulated. Industry members should be aware of what their obligations are to the FDA, TTB and relevant state agencies before launching a zero-proof or nonalcoholic beverage.
In alcohol advertising, claim substantiation is the key to risk mitigation. Across all industries, we are seeing an uptick in sustainability claims, the use of reviews as part of advertising, claims around diversity, equity and inclusion efforts, and the continued use of social media influencers in marketing. Industry members should understand what constitutes a “claim” in advertising (e.g., what an influencer does with your product may be as important as what they say about it) and ensure they have the evidence to back up those claims.
Keep an eye on the FTC. The Federal Trade Commission (FTC) is busy, both updating guidance for industry and taking sweeping enforcement actions. The FTC is in the process of revising its Guides for the Use of Environmental Marketing Claims (Green Guides). As sustainability claims become more prevalent, and as consumers rely on them more to make buying decisions, these updated Green Guides will be an important tool for industry members. As for enforcement, the alcohol industry has not been spared, and where the FTC’s current investigations ultimately go will be determinative of how the agency, under the Biden administration, views antitrust issues in the alcohol space.
A new wave of direct-to-consumer shipping litigation is here. The familiar debate about direct-to-consumer (DTC) shipping laws returns. The litigation is primarily coming from out-of-state retailers challenging laws that allow in-state retailers to ship DTC but prohibit the same for out-of-state retailers. A new batch of litigants, primarily smaller suppliers, are also challenging laws that allow in-state self-distribution and DTC sales but prohibit the same for out-of-state suppliers.

Access webinar and slides.

Key Takeaways | Trends in Customer Data Acquisition and Use for Alcohol Companies

by Alva C. Mather, Scott Ferber, Amy Pimentel and David Saunders | Jun 23, 2023 | Advertising and Marketing

In a recent webinar, Alva Mather, Scott Ferber, Amy Pimentel and David Saunders reviewed how alcohol companies should be thinking about and maximizing their data. They shared innovative marketing strategies and addressed privacy and cybersecurity considerations from an alcohol commercial side.

Some of the significant topics discussed included:

Keeping Ahead of Supply Chain Cyber Threats
Using Collected Data
Leveraging Personal Data for Marketing
Transparency

Access the webinar and key takeaways.

Contracts Corner: Distribution Agreements

by Alva C. Mather | May 4, 2023 | Advertising and Marketing, Distribution

Finding the right distributor is critical to the success of an alcohol brand—as is ensuring the agreement appointing that distributor provides ample protection for the supplier or brand owner. At a high level, suppliers should keep the following top of mind when entering into a distribution relationship or negotiating a distribution agreement:

(1) What territory do you wish the distributor to service? Consider the following: Does the distributor call on the accounts/channels that a supplier wishes to target with its brand? Does the distributor have the capability, sales force and reach to cover the entirety of the area assigned, whether it be a portion of a state, a region or the entire country? Where not mandated by franchise law, does assigning exclusive distribution territories make sense, or is dualing the brand a better option?

(2) Whether a state has franchise law applicable to the distribution of its product that will govern the relationship between supplier and wholesaler. With respect to the term and termination provisions of a contract, whether the state(s) where the distributor will handle products have franchise laws may heavily impact what within a distribution agreement is ultimately enforceable. This is particularly important in states that have alcohol franchise protections that make the termination of a wholesaler difficult. Distilled spirits and wine manufacturers should take advantage of the fact that far fewer states have franchise protections for the distribution of spirits than those that have franchise laws applicable to the distribution of malt beverages.

(3) What sales goals or distribution targets do you want the distributor to achieve? You can bake sales goals into a distribution agreement or agree to affix sales goals in annual planning or marketing meetings.

(4) What allocations will be made for marketing, if any? Contemplate the use of a marketing fund in a distribution agreement. These funds are often funded by both parties, with the use of the funds mutually determined by the parties during annual planning meetings. Note that a limited number of states prohibit these funds, or they require participation in them on the part of a wholesaler to be voluntary as opposed to compulsory.

(5) What factors will determine whether the distributor is adequately servicing a brand? Carefully spelling out what the obligations and expectations of a distributor are is critical to creating a successful distribution relationship. Include measurable and specific obligations, particularly in states where good cause must be established in order to terminate a relationship.

(6) What events trigger the termination of the distribution agreement or relationship? Consider both events that may trigger a for-cause termination and not-for-cause termination rights (typically after payment of a termination fee).

(7) How to address a change in control of the parties. Change in control terms in a contract should address a change in control within a wholesaler’s and a supplier’s business. Suppliers should advocate for approval rights and the right to request reasonable information about a new owner or another fundamental change of a wholesaler, even in franchise states. For changes [...]

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2022 TTB Industry Circular 1: Consignment Sales

by Alva C. Mather | Jan 5, 2023 | Advertising and Marketing, Alcohol Excise Taxes, Import/Export, Legislation, Trade Practices, Transactions

Each year the Alcohol and Tobacco Tax and Trade Bureau (TTB) issues “Industry Circulars” that apply statutory or regulatory requirements to a “specific circumstance or set of facts” or restate existing requirements. TTB also uses Industry Circulars to announce new statutory requirements or to discuss certain corrective actions. The last few years have been relatively quiet in terms of TTB Industry Circulars, with only seven released in the last three years. Industry Circulars are an incredibly useful tool for a range of industry members and can provide clarity and direction on complicated regulatory issues.

In 2022, TTB issued three Industry Circulars. The first, released March 4, 2022, provided clarity on TTB’s views on the Federal Alcohol Administration Act’s (FAA Act) consignment sales provisions. The second, released November 16, 2022, reminded industry members of certain advertising rules, as well as clarified how those rules apply in the world of social media advertising. The third and final Industry Circular, released December 29, 2022, provided guidance for distilled spirits plants and importers on how to calculate certain reduced or effective tax rates under the Craft Beverage Modernization Act (CBMA).

As we gear up for 2023, the following is our take on how TTB’s guidance may be useful for you and your business.

Industry Circular 1: Consignment Sales

TTB issued its first Industry Circular of the year to clarify how it views extended payment terms under the consignment sales provisions of the FAA Act. The FAA Act makes it unlawful for an industry member (supplier or wholesaler) to sell, offer for sale, or contract to sell to any trade buyer (wholesaler or retailer), or for a trade buyer to purchase, offer to purchase or contract to purchase any products:

On consignment
Under conditional sale
With the privilege of return
On any basis other than a bona fide sale, or
Where any part of the sale involves, directly or indirectly, the acquisition by the industry member of other products from the trade buyer or the agreement to accept other products form the trade buyer.

See 27 USC § 205(d). Sales “on consignment” are arrangements where a trade buyer is under no obligation to pay for product until they have been sold by the trade buyer. See 27 CFR § 11.22.

This Industry Circular reminds industry members that although TTB generally prohibits consignment sales, the regulations do not specifically impose payment term limitations for sales between industry members and trade buyers. That does not mean, however, that all payment terms are “beyond scrutiny as potential sales on consignment.”

In particular, TTB advised that “in the absence of explicit terms that violate the consignment sale regulations, payment terms of up to 30 days are unlikely to constitute consignment sales.” Conversely, payment terms exceeding 30 days may invite scrutiny from TTB to determine whether those payment terms were “merely a subterfuge” to sell goods on consignment because the buyer is effectively under no obligation to pay for product until the trade buyer has sold [...]

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