The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently published an Industry Circular on social media, Industry Circular 2024-1. It supersedes a 2022 Industry Circular on the same subject and is one in a line of updates in which the TTB clarifies the application of its advertising regulations to new forms of media. Most notably, this industry circular clarifies the TTB’s position on using links to satisfy the regulations’ “mandatory information” requirements and provides more specific guidance related to various types of social media content:

• Websites and Mobile Websites
• Social Network Services (Facebook, LinkedIn, etc.)
• Media Sharing Sites (Instagram, YouTube, etc.)
• Blogs
• Microblogs (X, Tumblr, etc.)
• Crowdsourcing/Crowdfunding Sites (Kickstarter, GoFundMe, etc.)
• Mobile Apps
• Linked Content/Quick Response Codes/Augmented Reality
• Social Media Influencers

The TTB views an industry circular as an explanation or clarification of existing law and regulations. While a few industry circulars arguably create new obligations and therefore would be vulnerable to a legal challenge if questioned, most clarify the TTB’s view on the application of existing regulations to particular circumstances, technologies, or fact patterns. The TTB views Industry Circular 2024-1 in that light.

The TTB’s advertising regulations, on their face, state that they apply to electronic media. The fact that an advertisement appears on an Instagram account instead of a company website logically should not matter. Moreover, and as underlined by the industry circular’s discussion of social media influences, if the brewery compensates or otherwise causes a third party to post positive things about the brewery, the TTB will view the post as an advertisement.

While we will not attempt to replicate every part of Industry Circular 2024-1 here, a notable feature is the TTB’s authorization of links, in many circumstances, to satisfy TTB’s mandatory statement requirement for malt beverage advertisements, found in the regulations at 27 C.F.R. § 7.33. To oversimplify, that regulation requires advertisements to list the “responsible advertiser” for the ad (e.g., “XYZ Brewery, Boulder, Colo.”) and a statement of the malt beverage’s class/type (e.g., beer, lager, ale), although class/type is not necessary if the advertisement refers to multiple products.

With respect to websites, the industry circular expressly states that mandatory information does not need to appear on every page of a website. Instead, it states: “TTB views the entire page or site (i.e., the “home” page and all sub or tabbed pages directly associated with the ‘home’ page) as a single advertisement. Accordingly, mandatory statements need only appear once on the page, either on the ‘home’ page or on any sub or tabbed pages directly associated with the ‘home’ page[.]”

The industry circular extends this consolidation of mandatory information approach to social media. In the case of sites like Instagram, the “TTB considers such sites and posts on them to be a single advertisement[,]” eliminating the need for mandatory information on every post. In the case of X (formerly Twitter), to take another example, a brewer can satisfy the TTB’s mandatory statement requirement by including such information on their profile page or using a descriptive link that takes the user directly to a separate webpage containing the mandatory statements.

A few other points in Industry Circular 2024-1, while not new positions of the TTB, should be highlighted to craft brewers. First, when a brewer decides to link to an outside source (e.g., an article), the TTB will treat the article as an advertisement of the brewer for purposes of its advertising regulations. So, for example, should a brewery link to an article asserting that the consumption of beer has health benefits, the TTB will view that situation as if the brewery itself posted an advertisement making those claims about health benefits. The TTB cannot, of course, censor the article, but it can take action against the brewer for using that article as part of its advertising.

Second, and as briefly mentioned above, the industry circular reaffirms the TTB’s position towards “influencer” advertising. Where an influencer posts content on behalf of a brewery, even on the influencer’s own website, TTB will consider the influencer’s post advertising by the brewery.

The Brewers Association will continue monitoring developments at the TTB and keep its members informed.