United States: What Is "Advertising" Under The DISCUS Code?

Earlier this year, Whisky Magazine wrote an article about Woodford Reserve Master Distiller Elizabeth McCall, which included a photo of her, while pregnant, holding a glass of bourbon in her hand. The article reports on McCall becoming the brand's new Master Distiller and, among other things, talks about some of the challenges of being a woman (and a pregnant woman) working in the whisky business. Woodford Reserve then shared the article on LinkedIn.

A consumer complained to the Distilled Spirits Council of the United States, arguing that the article and the social media post violated the DISCUS Code of Responsible Practices for Beverage Alcohol Advertising and Marketing by showing a photo of a pregnant woman with a glass of bourbon in her hand. Specifically, the consumer argued that it violated the Code provision that states that, "Beverage alcohol advertising and marketing materials should portray beverage alcohol products and drinkers in a responsible manner and reflect generally accepted contemporary standards of good taste." The consumer wrote that the photo, "sends a clear signal that it's socially and medically acceptable for pregnant women to drink bourbon."

The DISCUS Code Review Board dismissed the complaint, finding that the article and the social post didn't violate the DISCUS Code. Here's why.

First, DISCUS determined that the Code didn't cover the content that the consumer complained about here, since neither the article nor the social post were "advertising and marketing materials." The article wasn't covered because it was just editorial content, not some sort of paid paid placement. DISCUS explained, "this was an unpaid journalistic article not directed by the company that centered upon a Brown-Forman employee, and not the marketing of a brand." DISCUS also wasn't troubled by the fact that Brown-Forman shared the article on LinkedIn, nothing that "the article focused on an employee and was posted to the company LinkedIn page where the company provides information relevant to current and future employees and does not engage in brand-specific marketing."

Second, DISCUS said that, even if the article had been determined to be advertising, it still wouldn't have violated the Code. DISCUS pointed to the fact that the article makes clear that, while pregnant, the Master Distiller doesn't drink the product. DISCUS wrote, "the totality of these materials does not portray or endorse irresponsible behavior in relation to beverage alcohol products, but rather the article highlights how McCall responsibly navigates her due role of Master Distiller and expectant mother."

Not only does this decision provide helpful guidance to marketers of distilled spirits products about what constitutes "advertising" under the DISCUS Code, it's a strong statement that DISCUS isn't going to apply its standards blindly, but will consider the (very important) context in which materials appear.

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