GUEST POST: This page was principally authored by Maria Martinez, a law student at the University of Michigan. She has also served as a summer associate at Honigman Miller Schwartz and Cohn LLP and an intern to the Hon. Mark A. Goldsmith of the U.S. District Court for the Eastern District of Michigan. She can be reached at marmaria [AT] umich [DOT] edu.
The alcohol industry has been no stranger to the use of social media to promote its products and has recently recognized its potential to influence minors.
In September of 2011, the Distilled Spirits Council of the United States (DISCUS) released guidelines for marketing and promoting alcoholic beverage products via social media. According to the DISCUS Guidance Note on Responsible Digital Marketing Communications, the principles arise from the group’s commitment to market its brands responsibly to adults and to respect their privacy.
The principles arise at a time when like-institutions like the Wine Institute and the Beer Institute have adopted similar self-regulatory codes. Because digital marketing activities are “in a stage of evolutionary development where new trends are likely to occur rapidly,” according to the Guidance Note, these and similar guidelines may become the industry standard, especially considering the extensive amount of time that statutes and other regulations require to pass.
The scope of the principles covers ordinary social media as well as “branded digital marketing communications,” both paid and unpaid, which includes social network sites, like Facebook and Twitters, blogs, and mobile applications.
Among the “Basic Principles” are the use of “age affirmation” by the user prior to full user engagement of that communication, regular monitoring of user-generated content, instructions to not forward materials to individuals below the legal purchase age, and respect of a user’s privacy.
Besides supplying principles, DISCUS provides “Guidance to Implement Principles.” For example, DISCUS defines “age affirmation” as “a process or a mechanism by which users provide their full date of birth (month, day and year) and, when appropriate, country of residence to affirm they are of legal purchase age.” While age affirmation mechanisms may vary, if a user enters a date of birth that indicates they are under the legal purchase age, access should be denied and visitors should be given a message on responsible drinking.
But what should the industry do about minors who lie about their age, or minors who simply disregard the message altogether? DISCUS appears to have considered this possibility by adopting the principle that says “digital marketing communications should be placed only in media where at least 71.6% of the audience is reasonably expected to be of the legal purchase age.” This principles errs on the side of protecting minors by precluding access altogether.
In sum, DISCUS has provided the alcohol industry with useable tools for ethical marketing. Of course, as with other industries that use self-regulation to establish marketing standards, the challenge of self-regulation is self-implementation, the success of which remains to be seen.
