Category archives for “Online”

TTB Updates its Position on Gluten-Free Label Claims

February 11, 2014

On Tuesday, the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) issued an Announcement regarding its treatment of “gluten-free” claims on alcoholic beverage labels. As we previously blogged here, TTB has been looking into the issue of gluten-free labeling since at least 2012, and TTB Ruling 2012-2 implemented a policy of allowing the term “gluten-free” only on the labels of products that are produced without any ingredients that contain gluten. For products made from gluten-containing materials, the 2012 Ruling implemented several requirements, including: a) a statement that the product is “Processed or Treated or Crafted to remove gluten;” b) a qualifying statement to inform consumers that (i) the product was made from a grain that contains gluten, (ii) there is currently no valid test to verify the gluten content of fermented products, and (iii) the finished product may contain gluten; and, c) a detailed description of the method used to remove gluten from the product.

TTB explains in its most recent announcement that it has finished its review of the FDA’s rule on gluten-free labeling, and has updated its requirements accordingly. TTB will continue to allow the term “gluten-free” only on the labels of products that are produced without any ingredients that contain gluten. However, for products made from gluten-containing materials, TTB has lessened the labeling requirements, and now provides that such products may be labeled with a statement that the product was “processed, “treated” or “crafted” to remove gluten, if that claim “is made together with a qualifying statement that warns the consumer that the gluten content of the product cannot be determined and that the product may contain gluten.” Labels no longer require a detailed description of the method used to remove gluten from the product.

If you have any questions about alcoholic beverage labeling, contact one of the attorneys at Strike & Techel.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2014 · All Rights Reserved ·


Facebook Eases Restrictions on Promotions Conducted on Commercial Facebook Pages

September 11, 2013

On August 27, 2013, Facebook announced changes to make it easier for businesses to create and administer promotions on the website. This means any business - including alcohol beverage industry members - can now collect entries for sweepstakes or contests using Facebook itself. Prior to these changes, all promotions on Facebook had to be administered through applications. Now, promotions can be administered on Page Timelines or in applications, though they may not be administered on personal Timelines. For example, now it is possible for businesses to:

- Collect entries by having users post on the company’s Page or comment/like a post

- Collect entries via messages users send to the company’s Page

- Have promotions including a voting element based on likes

You can read more about the changes here. If you have any questions about the ins and outs of using social media as part of the business marketing and promotional plans for companies in the alcohol beverage industry, call one of the attorneys at Strike & Techel.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2013 · All Rights Reserved ·


Recent California Statutory Revisions Clarify the Scope of Permissible Retailer Listings by Supplier

April 29, 2013

Effective January 1, 2013, California AB 2349 amended Business and Professions Code Section 25500.1 and repealed Section 25500.2. The two sections (25500.1 and 25500.2) were duplicative in that both permitted suppliers to list the names of two or more restaurants that carry their products. Section 25500.2 included beer, wine and distilled spirits suppliers, while 25500.1 pertained to suppliers of wine and brandy. The newly amended 25500.1 covers suppliers of beer, wine and distilled spirits. In addition to consolidating the two laws, the newly amended Section 25500.1 removes the requirement that the listed on-sale retailers be restaurants - suppliers can now list bars and clubs that do not serve food. The new Section 25500.1 also clarifies that suppliers can list “other electronic media” with the retailers’ names, addresses and websites, which would include the retailers’ twitter accounts, Facebook pages, and other social media forums.

The revised Section 25500.1 parallels the existing and unchanged Section 25502.1, which pertains to supplier listings of off-sale retailers. Section 25502.1 has not been revised to include “other electronic media” as a means to list the retailers’ information, but we believe it is intended to parallel the on-sale provisions of Section 25500.1. Note that the on-sale and off-sale statutes both include restrictions, e.g., the listings may not include retail prices; the supplier must list at least two unaffiliated retailers; and the retailer may not pay for the listing.

For information about these statutes or any other California trade practices questions, please contact any of the attorneys at Strike and Techel.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2013 · All Rights Reserved ·


Beer Suppliers and Distributors May Now Preannounce Retail Visits in Texas

February 11, 2013

On February 7, 2013 the Texas Alcoholic Beverage Commission (“TABC”) issued an advisory, MPA053, entitled Promotional Activity Prearrangement/Preannouncement for Beer, which announces an amendment to 16 Tex. Admin. Code § 45.113, allowing beer manufacturers and distributors to prearrange and preannounce promotions at all on and off premise retail locations. Existing law (Tex. Alco. Bev. Code Ann. § 102.07(g)) permits distilled spirits and wine manufacturers and wholesalers to prearrange and preannounce promotional activities at retail premises (see MPB023), but beer manufacturers and wholesalers were excluded. Bar spending, sampling, appearances by agents, etc., could not be prearranged with the retailer or preannounced to consumers for beer; they had to be spontaneous. With this amendment, beer manufacturers and distributors are put on equal footing with spirits and wine suppliers and will be allowed to preannounce, or advertise, their promotional activities to consumers by means of email, TV, print, and digital media. These announcements may include event details, such as the date, time and location of the event. The amendment will enable beer manufacturers and distributors to more effectively prearrange their promotional activities.

The attorneys at Strike & Techel are available to answer questions about promotions and other industry trade practices.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2013 · All Rights Reserved ·


Social Media Litigation: Phonedog v. Kravitz and Lessons for Best Practices

July 16, 2012

Wine and other alcoholic beverage industry members, along with everyone else trying to advertise and sell just about anything online, are constantly being reminded to use social media to market their businesses. While the possible benefits of social media are well known, today’s post is a reminder to use discretion and sound business judgment when launching a social media campaign, just as you would for other aspects of your business. Three recent cases highlight the importance of developing social media policies before problems arise.

In Phonedog v. Kravitz, Northern District of California, Case No. C 11-03474, Phonedog, a website that reviews mobile devices, sued its former employee over issues surrounding the ownership of a Twitter account. Kravitz was a product reviewer for Phonedog, and was tasked with maintaining a company Twitter account. While Kravitz worked for Phonedog, the Twitter account had approximately 17,000 followers. At some time after Kravitz resigned from Phonedog, the company requested that the Twitter account be returned, but Kravitz instead changed the name of the Twitter account to his own name and declined to give Phonedog access to the account (the details of when Phonedog did or did not request access to the Twitter account and related issues are up for debate and are key issues in the ongoing case). Phonedog first brought suit against Kravitz on July 15, 2011, alleging four causes of action related to Kravitz’ unauthorized use of the Twitter account, including: 1) misappropriation of trade secrets, 2) intentional interference with prospective economic advantage, 3) negligent interference of prospective economic advantage, and 4) conversion. Phonedog claimed that it suffered $340,000 in damages as a result of Kravitz’ actions. That damages calculation is based on 17,000 followers, valued at the “industry standard” of $2.50/month per follower, for an 8-month period. The case is still in its early stages, but so far the court has largely rejected Kravitz’ efforts to dismiss the lawsuit, and has allowed the case to go forward over Kravitz’ claim that the case could not meet the required jurisdictional minimum ($75,000) because Phonedog could not prove that it has ownership or the right of possession of the account or its followers. The court determined that those are factual issues not appropriate for early dismissal, paving the way for more fighting over the Twitter account.

Another ongoing federal case, Christou v. Beatport, District of Colorado Case No. 10-cv-02912-RBJ-KMT, is instructive on the issue of the ownership of social media accounts. In Christou, one of several issues is whether a nightclub owner’s Myspace page and the associated friend list can be protectable trade secrets. In this case a former business partner left the business and kept the login information and friends list of the nightclub’s Myspace account, and began using the account for his competing business. Similar to Phonedog, the court has allowed the case to survive a motion to dismiss, meaning that the court has allowed the argument to go forward that social media account information may be considered a protectable trade secret.

Lastly, in Ardis Health, LLC v. Nankivell, Southern District of New York Case No. 11 Civ. 5013, the plaintiff employer sought a preliminary injunction against its former employee, Nankivell, seeking the return of the employer’s login information for its online accounts, including its social media accounts. The court granted the preliminary injunction with respect to the account information, and required Nankivell to return the information, finding that “it is uncontested that [the employer] own[s] the rights to the Access Information.” In its decision, the court referred to the employment agreement Nankivell signed when she was hired, which included language that work created during her employment “shall be the sole and exclusive property of [the employer].”

There are several important legal tenets which will continue to evolve with the resolution of the Phonedog, Christou, and other similar cases, including whether social media customer lists can qualify as trade secrets. But regardless of how those cases get resolved, they are instructive for anyone marketing with social media. Most importantly, companies should consider several issues before launching social media campaigns, including: a) making clear who owns all social media accounts, including customer lists, friends, and followers, etc., b) developing written social media policies, addressing issues such as username and password access, customer information access, and issues related to the authority to post messages online, and c) return and/or use of company information by agents or contractors. We’ll keep you posted as the legal issues surrounding social media continue to evolve.

Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2012 · All Rights Reserved ·


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