With a new presidential administration, bev-alc lawyers are holding their breath as they await the federal government’s standpoint on alcohol-related policy. Tariff talks are among the top concerns, as well as a turn in health policies, such as new dietary guidelines and possible labeling requirements. In the meantime, there are other regulatory updates and areas of increased enforcement that legal minds are keeping an eye on.
From social media advertising to shipping regulations, here are some of the top legal issues for bev-alc and adult-non alc suppliers to pay attention to this year.
Advertising Laws Get An Update
Don’t let your influencer partners run wild in 2025. The TTB put out an industry circular in October clarifying that the rules that apply to advertising in alcohol also apply to social media. That means suppliers should be doing more vetting of the marketing firms they work with to make sure they aren’t promoting irresponsible drinking or offering misleading claims, for instance.
“Brands are outsourcing a lot of that work to third parties that work with these social media influencers that don’t have any experience in beverage and don’t understand the regulations involved,” said Rachel Lawson, a Tennessee-based alcohol attorney at Dickinson Wright. “And so what happens is they put things out on social media and then the manufacturer gets popped with something.”
By “popped,” Lawson means given a citation. To avoid that, she advises working with marketing companies that have dealt with bev-alc brands before and asking them if they’ll compensate the supplier for any violations.
As Non-Alc Grows, So Does Enforcement
Selling adult non-alc (ANA) or crossover products? As those categories blossom, the attorneys over at McDermott Will & Emery want suppliers to remember that not all states regulate ANA products equally.
In certain states (such as Idaho, Kansas, Michigan, Nebraska and Georgia) if a product was originally alcoholic and de-alcoholized it will be treated as such even if it is below the 0.5% ABV threshold, meaning selling direct to consumer might be restricted and franchise laws may apply. Certain states also restrict selling “imitation liquor” to underage consumers.
If companies are selling ANA and full-proof or crossover products in the same portfolio, regulators are also increasingly looking at trade practices. Activities that are expressly prohibited in the bev-alc space, such as paying a retailer slotting fees, should not cross pollinate into non-alc sales activity.
“Separation is key, making sure that there really are differences as much as you can make them between the alcoholic side of the business – particularly in your salesforce – from the alcoholic side,” said partner Alva Mather, who leads the firm’s alcohol regulatory and distribution practice.
ANA suppliers should also keep class action lawsuits in mind and avoid health claims that while permissible by the FDA, could deceive customers. One example: The lawsuit against Heineken USA, alleging that the company has misled consumers in the labeling and marketing of its Heineken 0.0 non-alcoholic beer, as the product contains 0.03% ABV.
“Even if you are allowed to do so from a regulatory perspective, that does not save you from class action plaintiffs who want to claim that you are deceiving them in some respect,” Mather said.
Direct-to-Consumer Shipping: ‘Don’t Be Cute’
New York’s big direct-to-consumer shipping win brought the number of states that allow direct-to-consumer spirits sales from out of state spirit suppliers to about nine, and Alex Koral, regulatory general counsel at ShipCompliant is hopeful the new law will provide an example for other states. But while the tally remains, Koral said to brands, “don’t take any shortcuts or try to be cute about it and find contract loopholes to try to get around those rules and ship where states don’t otherwise allow it.”
Craft distillers in another major market, California, also had their direct-shipping privileges extended for one more year, but out-of-state producers are still barred.
One area of enforcement that has picked up is age checks, and even states that don’t necessarily have age verification at the time of sale written in their statutes are still enforcing that rule, said Koral.
FTC Versus SGWS
The Federal Trade Commission (FTC) ended the year with a bang by suing Southern Glazer’s Wine and Spirits (SGWS), the nation’s largest alcohol distributor, over its pricing practices.
The lawsuit completes a series of other Biden administration lawsuits through the FTC that attempt to level the playing field for small retailers and reduce the impact of high food and beverage prices on consumers. Since 2021, after President Joe Biden issued an executive order urging for an examination of the state of competition in the U.S. economy, the FTC, TTB and Department of Justice have also been taking a closer look at the beverage-alcohol industry. So what does the new administration mean for the lawsuit?
“I would not expect the FTC to withdraw this under the new administration,” said Ethan E. Litwin, antitrust partner at Shinder Cantor Lerner. “It’s unusual for a change in administration to result in active litigations being voluntarily dismissed, but it may not be pursued with vigor.”
SGWS argued at the time of the announcement of the lawsuit that it was authorized among party lines, with dissents coming from commissioners Melissa Holyoak and Andrew Ferguson, who has been selected as the future chair of the FTC under President-elect Trump’s administration. Litwin described Ferguson as more of an “old school, less enforcement minded Republican.”
“But the Commission still is three-votes control, and you have at least three very enforcement minded commissioners in the new administration, and I think that will bode well for enforcement of the antitrust laws going forward,” he said.