TTB Issues Industry Circular on Social Media Advertising

The TTB has issued a new Industry Circular outlining the guidelines for social media advertising by wineries, breweries and distilleries.  This includes Facebook, Twitter, You Tube, Mobile Apps, and Blogs.  The industry circular can be viewed by following this link:

http://www.ttb.gov/industry_circulars/archives/2013/13-01.html

Also, here is a reposting of an article WineAmerica published covering advetising. 

If you have any questions please contact Michael Kaiser at mkaiser@wineamerica.org

Make Sure Your Advertising is TTB Compliant

By Michael Kaiser

The TTB doesn’t merely collect your taxes and approved your labels, they also regulate advertising for alcoholic beverages. Now your advertisements do not need to be approved by the TTB, but they must be complaint with the regulations and it is up to the winery or “responsible advertiser” to make sure the advertisements are complaint.

Let’s examine what is considered by TTB to be an advertisement. According to TTB:

The regulations define the term”advertisement” as any written or verbal statement, illustration, or depiction which is in, or calculated to induce sales in, interstate or foreign commerce, or is disseminated by mail. Examples include ads in newspapers or magazines, trade booklets, menus, wine cards, leaflets, circulars, mailers, book inserts, catalogs, promotional materials, or sales pamphlets. The definition includes any written, printed, graphic, or other material accompanying the container; markings on cases, billboards, signs, or other outdoor display; and broadcasts made via radio, television, or in any other media. Though not specifically listed, this definition includes website and other Internet-based advertising.

That last sentence is very important. The regulations for labeling and advertising of wine have not been updated for quite some time, and they were originally written before the Internet became what it is today. So the TTB places Internet advertising under the “any other media” umbrella. The TTB considers Facebook and other social media sites to be advertising.

Required Information
There is some required information for advertising material. They are listed in the regulations (27 CFR Part 4.62) as the following:

• Responsible advertiser. The advertisement shall state the name and address of the permittee responsible for its publication or broadcast. Street number and name may be omitted in the address.
• Class, type, and distinctive designation. The advertisement shall contain a conspicuous statement of the class, type, or distinctive designation to which the product belongs, corresponding with the statement of class, type, or distinctive designation which is required to appear on the label of the product.
• Exception. (1) If an advertisement refers to a general wine line or all of the wine products of one company, whether by the company name or by the brand name common to all the wine in the line, the only mandatory information necessary is the name and address of the responsible advertiser. This exception does not apply where only one type of wine is marketed under the specific brand name advertised. (2) On consumer specialty items, the only information necessary is the company name or brand name of the product.

Prohibited Information
As with wine label, there are prohibited practices for wine advertising. The regulations (27 CFR Part 4.64) list them as the following.

• Any statement that is false or untrue in any material particular, or that, irrespective of falsity, directly, or by ambiguity, omission, or inference, or by the addition of irrelevant, scientific or technical matter tends to create a misleading impression.
• Any statement that is disparaging of a competitor’s products.
• Any statement, design, device, or representation which is obscene or indecent.
• Any statement, design, device, or representation of or relating to analyses, standards, or tests, irrespective of falsity, which the appropriate TTB officer finds to be likely to mislead the consumer.
• Any statement, design, device, or representation of or relating to any guarantee, irrespective of falsity, which the appropriate TTB officer finds to be likely to mislead the consumer. Money-back guarantees are not prohibited.
• Any statement that the wine is produced, blended, bottled, packed, or sold under, or in accordance with, any municipal, State, or Federal Government authorization, law, or regulations; and if a municipal, State, or Federal permit number is stated, the permit number shall not be accompanied by any additional statement relating thereto.
• Any statement of bonded winecellar and bonded winery numbers unless stated in direct conjunction with the name and address of the person operating such winery or storeroom. Statement of bonded winecellar and bonded winery numbers may be made in the following form: “Bonded Winecellar No. __,” “Bonded Winery No. __,” “B. W. C. No. __,” “B. W. No. __.” No additional reference thereto shall be made, nor shall any use be made of such statement that may convey the impression that the wine has been made or matured under Government supervision or in accordance with Government specifications or standards.
• Any statement, design, device, or representation which relates to alcohol content or which tends to create the impression that a wine contains distilled spirits, is comparable to a distilled spirit, or has intoxicating qualities.
• Any word in the brand name or class and type designation which is the name of a distilled spirits product or which simulates, imitates, or creates the impression that the wine so labeled is, or is similar to, any product customarily made with a distilled spirits base.

Additionally, wine advertising may not include information that is deemed be inconsistent with labeling. Any label depicted on a bottle in an advertisement shall be a reproduction of an approved label.
Further restricted items on wine advertisements are:

• Statement of age. No statement of age or representation relative to age (including words or devices in any brand name or mark) shall be made, except (1) for vintage wine, in accordance with the provisions of §4.27; (2) references in accordance with §4.38(f); or (3) use of the word “old” as part of a brand name.
• Statement of bottling dates. The statement of any bottling date shall not be deemed to be a representation relative to age, if such statement appears without undue emphasis in the following form: “Bottled in __” (inserting the year in which the wine was bottled).
• Statement of miscellaneous dates. No date, except with respect to statement of vintage year and bottling date, shall be stated unless, in addition thereto, and in direct conjunction therewith, in the same size and kind of printing there shall be stated an explanation of the significance of such date: Provided, That if any date refers to the date of establishment of any business, such date shall be stated without undue emphasis and in direct conjunction with the name of the person to whom it refers.
• Flags, seals, coats of arms, crests, and other insignia. No advertisement shall contain any statement, design, device, or pictorial representation of or relating to, or capable of being construed as relating to, the armed forces of the United States, or of the American flag, or of any emblem, seal, insignia, or decoration associated with such flag or armed forces; nor shall any advertisement contain any statement, device, design, or pictorial representation of or concerning any flag, seal, coat of arms, crest, or other insignia likely to mislead the consumer to believe that the product has been endorsed, made, or used by, or produced for, or under the supervision of, or in accordance with the specifications of the government, organization, family, or individual with whom such flag, seal, coat of arms, crests, or insignia is associated.
• Statements indicative of origin. No statement, design, device, or representation which tends to create the impression that the wine originated in a particular place or region, shall appear in any advertisement unless the label of the advertised product bears an appellation of origin, and such appellation of origin appears in the advertisement in direct conjunction with the class and type designation.
• Use of the word “importer” or similar words. The word importer or similar words shall not appear in advertisements of domestic wine except as part of the bona fide name of the permittee by or for whom, or of a retailer for whom, such wine is bottled, packed or distributed: Provided, That in all cases where such words are used as part of such name, there shall be stated the words “Product of the United States” or similar words to negate any impression that the product is imported, and such negating statements shall appear in the same size and kind of printing as such name.
• Confusion of brands. Two or more different brands or lots of wine shall not be advertised in one advertisement (or in two or more advertisements in one issue of a periodical or newspaper, or in one piece of other written, printed, or graphic matter) if the advertisement tends to create the impression that representations made as to one brand or lot apply to the other or others, and if as to such latter the representations contravene any provision of §§4.60 through 4.64 or are in any respect untrue.
• Deceptive advertising techniques. Subliminal or similar techniques are prohibited. “Subliminal or similar techniques,” as used in this part, refers to any device or technique that is used to convey, or attempts to convey, a message to a person by means of images or sounds of a very brief nature that cannot be perceived at a normal level of awareness.

Health-related statements:

• Health-related statement means any statement related to health and includes statements of a curative or therapeutic nature that, expressly or by implication, suggest a relationship between the consumption of alcohol, wine, or any substance found within the wine, and health benefits or effects on health. The term includes both specific health claims and general references to alleged health benefits or effects on health associated with the consumption of alcohol, wine, or any substance found within the wine, as well as health-related directional statements. The term also includes statements and claims that imply that a physical or psychological sensation results from consuming the wine, as well as statements and claims of nutritional value ( e.g., statements of vitamin content). Statements concerning caloric, carbohydrate, protein, and fat content do not constitute nutritional claims about the product.
• Specific health claim is a type of health-related statement that, expressly or by implication, characterizes the relationship of the wine, alcohol, or any substance found within the wine, to a disease or health-related condition. Implied specific health claims include statements, symbols, vignettes, or other forms of communication that suggest, within the context in which they are presented, that a relationship exists between wine, alcohol, or any substance found within the wine, and a disease or health-related condition.
• Health-related directional statement is a type of health-related statement that directs or refers consumers to a third party or other source for information regarding the effects on health of wine or alcohol consumption.

Rules for advertising

• Health-related statements. In general, advertisements may not contain any health-related statement that is untrue in any particular or tends to create a misleading impression as to the effects on health of alcohol consumption. TTB will evaluate such statements on a case-by-case basis and may require as part of the health-related statement a disclaimer or some other qualifying statement to dispel any misleading impression conveyed by the health-related statement. Such disclaimer or other qualifying statement must appear as prominent as the health-related statement.
• Specific health claims. A specific health claim will not be considered misleading if it is truthful and adequately substantiated by scientific or medical evidence; sufficiently detailed and qualified with respect to the categories of individuals to whom the claim applies; adequately discloses the health risks associated with both moderate and heavier levels of alcohol consumption; and outlines the categories of individuals for whom any levels of alcohol consumption may cause health risks. This information must appear as part of the specific health claim and in a manner as prominent as the specific health claim.
• Health-related directional statements. A statement that directs consumers to a third party or other source for information regarding the effects on health of wine or alcohol consumption is presumed misleading unless it: Directs consumers in a neutral or other non-misleading manner to a third party or other source for balanced information regarding the effects on health of wine or alcohol consumption; and includes as part of the health-related directional statement, and in a manner as prominent as the health-related directional statement, the following disclaimer: “This statement should not encourage you to drink or increase your alcohol consumption for health reasons;” or includes as part of the health-related directional statement, and in a manner as prominent as the health-related directional statement, some other qualifying statement that the appropriate TTB officer finds is sufficient to dispel any misleading impression conveyed by the health-related directional statement.

It is clear that the TTB has an extensive list of prohibited practices for advertising of wine (and other alcoholic beverages) but it is consistent with the prohibited practices on wine labels. If you have any questions about anything listed in this blog post please let us know and we will clarify them further for you. It is essential for wineries to be compliant with TTB advertising regulations.

Announcing WineAmerica's New Website

WineAmerica is thrilled to announce the launch of the new WineAmerica website! 

www.wineamerica.org

The new website will provide WineAmerica members with the most up to date wine industry information and policy positions.

Member wineries and suppliers will have special access to:

• The National Wine Policy Bulletin: the most comprehensive listing of wine related policy

• Access to WineAmerica benefit programs such as the new UPS shipping program

• The ability to change contact information

• Renew membership online

How to Log-in:

Go to the upper right-hand corner. Your Username will be the email that you use to receive WineAmerica correspondences. Your Password will be the word: password. The first time you login you will be prompted to reset your password.

Any questions, email Tara Good, Manager of Member Services at tgood@wineamerica.org.

Starting today you can sign-up for WineAmerica's new UPS discount program

Log-on to wineamerica.org. On your member landing page, you will find a discription of the program and a link to UPS. Follow the link and regester! If you are currently a UPS customer, you will want to have your account number on hand.

For questions regarding:

WineAmerica membership and log-in: tgood@wineamerica.org

UPS service questions: 1-800-325-7000

Your current FedEx account: 1-800-475-6708

What the Senate Immigration Proposal Would Mean for Wineries

By Cary Greene, Outside Counsel

With the Senate immigration reform bill out this week, wineries are already asking about its potential impact on their businesses.  On the broadest level, the bill contains sections that deal with undocumented farm workers currently in the U.S. and with temporary—the bill uses the term “nonimmigrant”—farm workers that may be needed in the future.

Importantly, the bill’s agriculture labor reform provisions are not dependent on any border security enhancement “triggers.”

Blue Card, Farm Workers Currently in the U.S.  Undocumented farm workers currently in the U.S. are eligible for a work card (blue card) and possibly permanent resident status (green card) as long as they meet certain benchmarks.  To qualify for a blue card, undocumented immigrants need to prove a minimum of 100 workdays or 575 hours in the two years prior to December 31, 2012.  This achievable threshold is designed to encourage undocumented farm workers with agricultural training to continue in agriculture.

The blue card provisions need to be implemented through regulations largely written by the Department of Homeland Security (“DHS”) and the U.S. Department of Agriculture (“USDA”).  To qualify for a change in immigration status, blue card eligible workers will have to complete a background check and provide a fairly detailed set of documents within a limited time following final rulemaking.  While the rules implementing the blue card are supposed to be issued within a year of the law’s passage, delays should be expected.

Nonimmigrant Visas, A Plan to Replace the H-2a.  “Nonimmigrant” farm workers would be eligible for a visa in two flavors (i) portable, and (ii) tied to a particular employer.  The program is supposed to be overseen by USDA, and there’s a cap on the number of available visas.

Long-term, the “nonimmigrant” program would replace the complex H-2a program, but the provisions do not appear to go into effect until late 2014.  USDA would then have a year to implement rulemaking, but, again, delays would not be surprising.

Implementation of E-Verify.  The Senate bill proposes phased in, mandatory use of e-verify within 5 years.  If an employer has more than 5,000 employees, e-verify kicks in after two years.  If more than 500 employees, three years.  All agricultural employers are supposed to be phased in after four years, but there’s a provision that would give USDA the flexibility to determine if e-verify is workable within that time.

Keep in touch with your trade associations to stay on top of the latest developments.

 

THE AGRICULTURE COALITION FOR IMMIGRATION REFORM APPLAUDS LANDMARK AG LABOR AGREEMENT, WELCOMES SENATE COMPREHENSIVE IMMIGRATION BILL

WineAmerica is a member of the Agriculture Coalition for Immigration Reform

April 17, 2013 

The Agriculture Coalition for Immigration Reform (ACIR) applauds the successful attainment of a new landmark bipartisan employer and worker agreement on reform legislation intended to ensure a legal, stable agricultural workforce. The agreement was finalized yesterday by the Agricultural Workforce Coalition (AWC) and the United Farm Workers. ACIR, part of the AWC, provided much of the legal and economic guidance and expertise in the months-long negotiation that led to yesterday’s agreement. 

The legislative agreement would encourage experienced farm workers, who comprise most of America’s current farm workforce, to earn legal residency by fulfilling a future work requirement in agriculture and meeting other conditions. It would also create a new agricultural visa program – distinct from the current and largely dysfunctional H-2A program – to admit future foreign workers to work specifically in the agricultural sector for up to three years at a time. These provisions will now be considered by the U.S. Senate as a key component of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. ACIR welcomes introduction of the Senate bill, and the coming debate. 

In recent years, failed efforts to resolve America’s immigration dilemmas through “self-deportation,” “attrition through enforcement,” and hostile state laws, have harmed farms, farm workers, and families. It is time for Congress to act to modernize America’s immigration system. In fact, the very survival of many labor-dependent agricultural sectors depends upon Congress acting. These sectors not only provide America’s food and other agricultural products; they also create jobs and sustain entire communities. Labor force solutions will allow America’s fruit, vegetable, nursery, dairy, and livestock farms and ranches to survive and thrive in a competitive global economy. 

ACIR expresses sincere gratitude for the steadfast leadership and perseverance of Senators Dianne Feinstein, Marco Rubio, Michael Bennet, and Orrin Hatch, who oversaw and assisted with the agricultural employer/worker advocate negotiations. ACIR also thanks Senators Charles Schumer and John McCain, and the entire “gang of eight” Senators who have worked tirelessly to craft the border security, enforcement, legal immigration, and legalization provisions of the broader bill. We look forward to working with the entire Senate, as well as the House of Representatives, toward enactment of comprehensive immigration reform that includes the landmark agricultural agreement. 

For more information, contact the ACIR national co-chairs: 

Craig Regelbrugge, American Nursery & Landscape Association 

202/425-4401, cregelbrugge@anla.org 

John Young, New England Apple Council 

603/497-2132, neac1@aol.com 

Luawanna Hallstrom, National Council of Agricultural Employers 

858/449-9178, collaborativecommunicationslh@gmail.com 

Agriculture Workforce Coalition Statement on Immigration Agreement

WineAmerica is a member of the Agriculture Workforce Coalition

Washington, D.C. (April 12, 2013)—“The Agriculture Workforce Coalition (AWC) today

welcomed an agreement on immigration reform reached by the AWC, the United Farm

Workers (UFW) and key Senators engaged in the process. The framework and objectives of this agreement represent a positive step toward providing America’s farmers and ranchers access to a legal workforce now and in the future.

“The coalition is committed to including an agricultural guest worker program and supporting

the general framework negotiated in any final immigration reform package. As members of

Congress begin the process of drafting legislative language, we look forward to working with

them to ensure that the bill details reflect the goals and intent of this framework agreement.

“The AWC appreciates the efforts of Senators Dianne Feinstein, Marco Rubio, Orrin Hatch and Michael Bennet in helping to foster this agreement between agriculture employers and farm workers

“For many farmers across the country, finding a sufficient number of workers to harvest crops

or care for animals is the biggest challenge they face in running their businesses. There is a

shortage of U.S. workers willing and able to perform farm work. Securing a reliable and

competent workforce for our nation’s farms and ranches is essential to ensuring that American consumers continue to enjoy abundant and affordable food on their grocery store shelves.”

About the Agriculture Workforce Commission

The Agriculture Workforce Coalition (AWC) brings together organizations representing the diverse needs of the agriculture employees across the country.  AWC serves as the unified voice of agriculture in the effort to ensure that America's farmers, ranchers and growers have access to a stable and secure workforce.

To help achieve this goal, the AWC has developed a framework that presents a viable solution to agriculture's labor needs.  The proposal includes both an earned adjustment in status for current agricultural employees who presently lack legal status and a program to ensure an adequate farm workforce in the future.  Also, unlike current programs such as H-2A, the AWC proposal is meant to ensure that all types of producers--including both those with seasonal labor needs and ones with year-round labor needs--have access to the workforce they need to remain productive and competitive.

To learn more about AWC, visit our website at www.agworkforcecoalition.org.

Wine and Grape Coalition Works on Capitol Hill

By Mark Chander

Last week several of our wine industry peer organizations came to Washington, DC for a policy conference hosted by Winegrape Growers of America (WGA) and the National Wine and Grape Initiative (NGWI). Other industry partners such as Wine Institute, American Farm Bureau, and state and regional associations also participated (Atlantic Seaboard, California, Colorado, Maryland, Missouri, New York and Washington) - about 35 in the entire group. Most of the meetings and hill visits were coordinated by the very capable Cornerstone Government Affairs group, the new lobbying firm for the California Association of Winegrape Growers.

Coalition partners were able to meet with several key committees and agencies – House and Senate Agriculture Appropriations, House Horticulture Subcommittee, House Judiciary legal staff, USDA Animal and Plant Health Inspection Service (APHIS), USDA Risk Management Agency, TTB and the National Institute of Food and Agriculture. The primary policy matters addressed were funding for the Farm Bill, maintaining Specialty Crop Research and Block Grant initiatives, and immigration.

One entire day was set aside for a visit to the USDA Agricultural Research Service Center in Beltsville, MD, where the group was updated on cutting edge research in genotyping, agrosystems and environmental management, phenotyping, and crop protection.

Visits to Capitol Hill allowed us to meet with Rep. Kurt Schrader (OR), Rep. Sam Farr (CA), House Majority Leader Rep. Eric Cantor (VA), Rep. Jeff Denham (CA), Rep. Jim Costa (CA), Rep. David Valadeo (CA) and House Majority Whip Kevin McCarthy (CA). Several attendees met with their representatives individually. With the budget votes hanging in the balance it was a critical time to have a presence on Capitol Hill.  

A “Taste of the Grape” reception was held one evening, where wines from CA, VA, MO, NY, WA and CO were poured for the enthusiastic congressional staff and agency personnel.

Overall we found an unexpectedly aware group of people, who knew our issues, and listened to our stories. It is this type of contact that makes the difference between “being at the table, rather than on the menu” as expressed by one of our pundits. We are hopeful that funding for our priorities remains stable.

I strongly encourage as many WineAmerica members as possible to join us May 13-15 for our Annual Meeting, where similar opportunities will be offered. There is no substitute for one-on-one contacts with your legislators, who pay particular attention when you spend your time and energy to come visit them at their offices in Washington, DC.

Please join us!

Register for the WineAmerica Policy Conference here:  http://wamembers.grow-clients.com/