I. Alcoholic Beverages
Included below are scenarios and answers to questions about advertising alcoholic beverages provided by the OAB’s Ohio counsel of Vorys, Sater, Seymour and Pease, LLP.
This Guide does not constitute legal advice from the OAB or its legal counsel with respect to any specific advertisement and does not establish an attorney-client relationship between any member and OAB legal counsel.
If you have any questions about any of the issues raised in this section, or have an issue not covered below, please call the OAB Ohio Info-Line at 866-OAB-5785 (please identify yourself as an OAB member).
1. Who regulates the advertising of alcoholic beverages in Ohio? 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.
2. May alcoholic beverages be advertised on radio and television in Ohio, or on a radio or television station’s website? 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.
3. May retail prices and brand names be included in broadcast advertisements? Yes. OAC Rule 4301:1-1-44 expressly permits advertisements to include such information.
4. What general restrictions apply to alcoholic beverage advertising? 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:
5. Are there any differences in the rules regulating the advertising of beer, wine and spirituous liquor? No. OAC Rule 4301:1-1-44 establishes uniform advertising rules for all types of alcoholic beverages.
6. May contests, giveaways and other promotions be advertised on behalf of manufacturers, suppliers or wholesale distributors 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:
7. May contests, giveaways and other promotions be conducted on the premises of a retail permit holder? 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:
8. Are there any special rules applicable to the advertising of happy hours? Yes. Advertising should be consistent with OAC Rule 4301:1-1-50, which prohibits the following happy hour practices:
9. May a station advertise or conduct an on-air promotion, which includes a free alcoholic product, such as a gift basket which includes a bottle of wine? 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.
10. Are there any legal restrictions on advertising a local event sponsored by an alcoholic beverage manufacturer and retail permit holder? 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).
11. Are there any other restrictions on advertising alcoholic beverages in connection with the broadcast of sporting and other events? 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.
12. May a manufacturer or wholesale distributor sponsor or participate in an advertisement for a retail permit holder? 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.
13. Are there any restrictions on advertising a promotion, such as a party bus, sponsored by an alcoholic beverage manufacturer offering drinks at special prices and free concert tickets at various locations around town? 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.
14. Is there any restriction on advertising a hotel promotion such as a New Year’s Eve package that includes a hotel room, dinner, and a happy hour with complimentary drinks and appetizers? 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.
15. Is there any restriction on advertising a hotel promotion such as a package that includes a hotel room, dinner, and casino party in which guests receive “free” play money to play casino games and to bid on gifts in an auction? 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.
16. What restrictions apply to advertisements for an out-of-state retailer by an Ohio station? 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