We received an inquiry as to whether advertisements of cigarettes and alcohol products on television are permitted.

I. Tobacco

Advertising cigarettes is prohibited on television and radio. Pursuant to 15 USCS § 1335, it is unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission ("FCC"). Both television and radio are mediums of electronic communication subject to the jurisdiction of the FCC.

II. Liquor

The advertisement of liquor on television is permitted, provided that the advertisement follows certain guidelines regarding mandatory and prohibited statements.

The advertising of liquor is subject to Title 27 of the Code of Federal Regulations which is entitled "Alcohol, Tobacco Products and Firearms." Liquor is generally segregated into three categories; wine, distilled spirits and malt beverages. The definition for each category is found in the Federal Alcohol Administration Act, 27 USCS 201, et seq.

An "advertisement" includes any written or verbal statement, illustration or depiction which is calculated to induce sales whether it appears in a newspaper, magazine publication or radio or television broadcast. Excluded from the definition is any editorial or other reading material (i.e. new release) or publication for which no money or consideration is paid or provided, directly or indirectly, by any permittee (holder of permit issued by the ATF) and which is not written by or at the direction of the permittee.

The advertisement must contain the name and address (excluding street number and name) of the entity responsible for the broadcast. The responsible entity may be the permittee or, in the case of malt beverages, the brewer, bottler, packer, wholesaler or importer. The advertisement must also contain the class, type and distinctive designation corresponding to the information that must appear on the label of the product being advertised.

For distilled spirits, the advertisement must also state the alcohol content as "___ percent alcohol by volume." The alcohol content in degree of proof may be stated if it is clear that the two alcohol content statements mean the same thing. The distilled spirits advertisement must also state the percentage of neutral spirits and name of commodity. Where the advertisement for any type of liquor refers to a general line of a company, then the class, type and designation information should be omitted.

Two or more different brands may 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 advertisements tend to create the impression that representations made as to one product apply to the other.

The mandatory information must be stated so as to be clearly part of the advertisement and so as to be readily apparent to the person viewing the advertisement.

The advertisement may not contain:

• 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 or to any guarantee, irrespective of falsity, which the ATF finds to be likely to mislead the consumer. Money-back guarantees are not prohibited;
• Any statement that the product is produced, blended, bottled, packed, or sold under, or in accordance with, any municipal, State, or Federal Government authorization, law, or regulations;
• Any representations about the age of the product being advertised; or
• Any statement that is inconsistent with any statement on the labeling of such product.
• Any label depicted on a bottle in the advertisement which is not a reproduction of an approved label.
• Any representation capable of being construed as relating to, the armed forces of the United States or the American flag;
• Any representation which tends to create the impression that the product originated in a particular place or region, unless the label of the advertised product bears an appellation of origin;
• Any item representing that the use of the product has curative or therapeutic effects if such statement is untrue in any particular or tends to create a misleading impression; or
• Subliminal or similar advertising techniques.

  In addition to the prohibitions above, each type of liquor has its own prohibitions.

  (i) Wine.

  An advertisement for wine may not contain:

• 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. Such a statement must be made in the following form: "Bonded Winecellar No. ----," "Bonded Winery No. ----," "B. W. C. No. ----," "B. W. No.";
• Any 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 creates the impression that the wine so labeled is, or is similar to, any product customarily made with a distilled spirits base; or
• The word "importer" or similar words 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. In all cases where such words are used as part of such name, the advertisement must also include the words "Product of the United States" or similar words to negate any impression that the product is imported, and such negating statements must be in the same size and kind of printing as the name.

An advertisement for distilled spirits may not contain:

• The words "bond", "bonded", "bottled in bond", "aged in bond", or phrases containing these or synonymous terms, unless such words or phrases appear, on labels of the distilled spirits advertised, and are stated in the advertisement in the manner and form in which they are permitted to appear on the label;
• The word "pure" unless it refers to a particular ingredient used in the production of the distilled spirits, and is a truthful representation about the ingredient; or it is part of the bona fide name of a permittee or retailer from whom the distilled spirits are bottled; or it is part of the bona fide name of the permittee who bottled the distilled spirits; or
• The words "double distilled" or "triple distilled" or any similar terms unless it is a truthful statement of fact; except that "double distilled" or "triple distilled" are not permitted in advertisements of distilled spirits produced by the redistillation method when a second or third distillation step is a necessary distillation process for the production of the product.

An advertisement for malt beverages may not contain:

• The words "bonded", "bottled in bond", "aged in bond", "bonded age", "bottled under customs supervision", or phrases containing these or synonymous terms which imply governmental supervision over production, bottling, or packing;
• The words "strong," "full strength," "extra strength," "high test," "high proof," "full alcohol strength," or any other statement of alcoholic content, or any statement of the percentage and quantity of the original extract, or any numerals, letters, characters, figures, or similar words or statements, likely to be considered as statements of alcoholic content, unless required by State law. This does not preclude use of the terms "low alcohol", "reduced alcohol", "non-alcoholic" and "alcohol-free."

Comparative advertising may not be disparaging of a competitor's product. Taste test results may be used in advertisements comparing competitors' products unless they are disparaging, deceptive, or likely to mislead the consumer. The taste test procedure used must meet scientifically accepted procedures and a statement must appear in the advertisement providing the name and address of the testing administrator.

Any person who has a question about this memorandum or its application to specific circumstances may obtain additional guidance by contacting this firm.