Ohio Advertising Regulations: Alcoholic Beverages

The Ohio Liquor Control Commission has promulgated the following rules which regulate or affect the content of alcoholic beverage advertising: Ohio Administrative Code (“OAC”) Rules 4301:1-1-03, 4301:1-1-43, 4301:1-1-44, 4301:1-1-45, 4301:1-1-46, 4301:1-1-50, 4301:1-1-53 and 4301:1-1-71 (see the Appendix at the end of this section). Enforcement orders of the Commission do not include reasons for a decision; therefore, there is little interpretative guidance available on advertising questions.

The distribution and sale of alcoholic beverages in Ohio are also regulated by the Division of Liquor Control of the Ohio Department of Commerce which, among other things, issues permits to retailers; and the Liquor Enforcement Unit of the Ohio Department of Public Safety which, as its name implies, enforces Ohio’s liquor laws.

Ohio’s liquor laws and regulations apply only to manufacturers, distributors and retail permit holders and do not impose any penalties on broadcast stations or other media that disseminate advertisements for alcoholic beverages which violate the Commission’s advertising rules.

Yes.  OAC Rule 4301:1-1-44 permits manufacturers, wholesale distributors and retailers to advertise alcoholic products, including spirituous liquors, beer, malt beverages, wine, prepared highballs, cocktails and other mixed beverages, on radio and television. However, no manufacturer or distributor may sponsor or participate in any advertising program for or with a retail permit holder, and no advertisement of a manufacturer or distributor can include the name or address of a retailer where its beverages may be purchased.

Generally speaking, the same restrictions which apply to broadcast advertising of alcoholic beverages also apply to advertising those beverages on a radio or television station’s website.

Yes. OAC Rule 4301:1-1-44 expressly permits advertisements to include such information.

OAC Rule 4301:1-1-44 requires advertisements to be dignified in make-up and not offensive to the good taste of the public, and prohibits advertisements which:

• Misrepresent the products advertised
• Condone or encourage excessive use of alcoholic beverages
• Portray intoxication
• Refer to or portray Santa Claus
• Contain any representation of children

No. OAC Rule 4301:1-1-44 establishes uniform advertising rules for all types of alcoholic beverages.

No, with respect to a wholesale distributor, but yes with respect to a manufacturer or supplier. OAC Rule 4301:1-1-45 permits a manufacturer or out-of-state supplier or a third party acting on its behalf (but not a wholesale distributor) to offer and advertise contests, prizes and other promotions directly to the consumer through printed or other media methods, subject to the following:

• No premium or gift is contingent on the purchase of alcoholic beverages.
• Entry forms may be distributed at the premises of retail permit holders.
• No employee, or immediate family member, of a manufacturer, supplier, distributor or retailer shall be eligible to receive any prize or award.
• Except for a mail-in rebate offer, no purchase of alcoholic beverages shall be required to participate. Neither alcoholic beverages or coupons or discounts for alcoholic beverages shall be a prize or award.
• No one under the age of 21 shall be permitted to participate or receive a prize.
• The prize or award may not be claimed at the premises of a wholesale distributor or retailer.
• An entry form is permitted on a container or package only if other methods of entry are readily available to the consumer at the place of purchase and purchase of the product is not required to participate.
• The contest or promotion must not be an illegal scheme of chance (illegal lottery, numbers, game, pool conducted for profit, illegal slot machine or other electronic device or other scheme in which a participant gives valuable consideration for a chance to win a prize) or game of chance (poker, craps, roulette, a slot machine, a punch board, or other game in which a player gives anything of value in the hope of gain, the outcome of which is determined largely or wholly by chance) (see Part III of this Guide) and must comply with general laws prohibiting deceptive acts or practices in consumer transactions (see Part IV of this Guide).

Yes.  OAC Rule 4301:1-1-53 permits promotional games and contests to be conducted on the permit premises and advertised, subject to the following:

• No retail permit holder may have, use or allow on the permit premises any gambling device (book or equipment for recording bets, a ticket or token representing a chance or evidencing a bet, deck of cards, dice, gaming table, roulette wheel, slot machine or other similar apparatus, any device designed for gambling purposes, or bingo cards, instant bingo tickets or cards, raffle tickets or other bingo supplies) which is or has been used for any activity constituting a gambling offense under Ohio law (see Section III of this Guide).
• The participant is not required to pay money or something of value other than visiting the premises to participate.
• Alcoholic beverages are not, directly or indirectly, an element of the game or contest.
• The game or contest is sponsored or designed and run by a retailer licensed to sell alcoholic beverages, a manufacturer whose main product line is not alcoholic beverages or their advertising agent or representative.
• No premium or gift is contingent on the purchase of alcoholic beverages.
• Except for promotions of alcoholic beverages, an entry fee or purchase of a product at customary retail price is permitted if the outcome of the game or contest is not determined largely or wholly by chance.
• The contest or promotion must not be an illegal scheme of chance or game of chance (see Part III of this Guide) and must comply with general laws prohibiting deceptive acts or practices in consumer transactions (see Part IV of this Guide).
• The rule does not apply to the sale of Ohio state lottery tickets and does not prohibit schemes and games of chance by charitable organizations permitted by Ohio law.

Yes.  Advertising should be consistent with OAC Rule 4301:1-1-50, which prohibits the following happy hour practices:

• An offer of two or more alcoholic beverages for the price of one;
• An offer of unlimited servings of alcoholic beverages during any set time period;
• The sale of any alcoholic beverages after 9 p.m. at a price less than what is listed in the schedule of regularly-charged prices required to be maintained by the permit holder;
• Games or contests involving drinking alcohol, or awarding alcoholic beverages as a prize; and,
• An increase in the volume of alcoholic beverages in a serving without proportionately increasing its price.

It depends on who is sponsoring or giving away the alcoholic product. OAC Rules 4301:1-1-45 and 4301:1-1-46 prohibit manufacturers, suppliers, distributors and retailers from giving away alcoholic beverages, with or without a purchase of merchandise or thing of value, or giving away merchandise or a thing of value with the purchase of an alcoholic product. Therefore, manufacturers, suppliers, distributors and retailers may not conduct or advertise such a promotion or provide free alcoholic beverages to a non-permit holder for such a promotion.

If the sponsor of the promotion is an organization, such as a station, which is not a liquor permit holder, it arguably may include an alcoholic beverage in a giveaway if it has purchased the alcoholic beverage. Due to a lack of clarity in the law, it would be preferable for such a sponsor to purchase and give away a gift certificate for the basket which can then be redeemed at a retailer.

Yes.  OAC Rule 4301:1-1-71 permits a manufacturer to sponsor radio and television broadcasts of athletic events and tournaments and to sponsor athletic events and tournaments, so long as no participant is a minor.

A manufacturer may also sponsor non-athletic events conducted by a nonprofit or charitable organization that is not a liquor permit holder (other than a temporary permit) and concerts, shows and other entertainment events on the premises of a retail permit holder so long as the primary purpose of the facility is not the sale of alcoholic beverages.

Sponsorship of any event by a manufacturer cannot be contingent on the purchase of alcoholic beverages or retail advertising specialties. A manufacturer and a retail permit holder may co-sponsor an athletic event or tournament and or other events conducted by a tax-exempt charitable organization that is not a liquor permit holder (other than a temporary permit).

Yes.  In addition to the restrictions under OAC Rule 4301:1-1-71, certain event sponsors have policies prohibiting the advertising of certain products, including alcoholic beverages. For example, the Ohio High School Athletic Association prohibits advertisements for alcoholic beverages, tobacco and patent medicines in broadcasts of high school athletic events and The Ohio State University Athletic Department bans the advertising of alcoholic beverages in broadcasts of its athletic events.

No.  OAC Rule 4301:1-1-44(D) prohibits a manufacturer or distributor from sponsoring or participating in an advertising program for or with a retail permit holder and from stating or giving the name or address where beverages handled by the manufacturer or distributor may be purchased. Therefore, a manufacturer or distributor should never pay for a retailer’s advertisement and cannot be named as the sponsor of a promotion that includes the name or address of a retailer.

However, a retailer may advertise brand and price in advertisements purchased and paid by it, and manufacturers and distributors may advertise their products so long as the advertisements do not include the name or address of retailers.

It depends on the locations around town, as well as the relationship between the tickets and the drinks. As noted at question 10 above, a manufacturer may sponsor events at a location with a liquor permit, as long as the primary purpose of the facility is not to sell and serve alcoholic beverages. A bus being driven around town to random locations probably does not qualify. In addition, the distribution of concert tickets cannot be preconditioned on the purchase of alcohol, nor can the sponsorship of the event be contingent upon the purchase of alcoholic beverages.

Yes.  Ohio Revised Code (“R.C.”) § 4301.22 prohibits a retail permit holder from giving away alcoholic beverages. Additionally, OAC Rule 4301:1-1-45 prohibits a permit holder from giving away something of value with the purchase of an alcoholic beverage. Therefore, advertising “complimentary drinks” is not appropriate.

Arguably no, if it can be demonstrated that: (i) the package does not include any direct or indirect charge or consideration for playing casino games; (ii) guests are not required to buy alcoholic beverages to participate; and, (iii) alcoholic beverages are not given away by the permit holder.

However, it can be argued that since the sponsor is a business, a portion of the package cost should be allocated to the casino event. Gambling and games of chance are highly regulated in Ohio (see Part III of this Guide), and it is generally not possible to obtain any informal guidance on this question from law enforcement officials. Stations should consult with and rely on the advice of their own legal counsel.

The advertisements should comply with the liquor law of the state where the retailer is located, not Ohio. Ohio’s liquor laws and regulations governing the advertising of alcoholic beverages apply to manufacturers, wholesale distributors and retailers engaged in business within the State of Ohio, but not to out-of-state retailers that only advertise within Ohio