Lawyers on Tap

A blog from the attorneys of Verrill

Search Blog

Social Media is an (age) gated community

Few brewers would dream of serving someone in their brewery or tasting room without checking an ID to ensure that all the craft beer lovers in the room are of legal drinking age. When it comes to their virtual breweries and tasting rooms, however, there appears to be a bit of laxness in ensuring that everyone is age appropriate. The problem with ignoring the age of virtual visitors is that Marketing and Advertising Codes issued by industry associations require age gates for websites and on social media. Age gates are also recommended by the Federal Trade Commission ("FTC").

Most craft breweries have age gates on their websites, but many are ineffective and fail to meet the Marketing and Advertising Code or the FTC's recommendations. There are, with some variations, three basic types of age gates for websites. First, there are what I would call passive age gates. These simply state that by viewing the website the viewer agrees or acknowledges that he or she is 21 or older. It is often at the bottom of the page or another location where it is easily missed or ignored. Second, are age gates that require some interaction, but nothing more than a simple click. These have a popup or landing page that ask whether the viewer is at least 21, requiring the user to click on "yes" or "no" to enter the website. Obviously, if the viewer wants to get into the website, he or she will click yes regardless of age. Third, are age gates that actually require the underage user to do some math to gain entry. While a diligent viewer will figure it out, these age gates require a bit more of the user than simply opening the webpage or clicking "yes." Instead, the user is required to enter his or her date of birth – and that date of birth must be at least 21 years earlier – before gaining access to the website.

Arguably, only the third option complies with the Brewers Association's Marketing and Advertising Code and it is the one recommended by the FTC. The Brewers Association's Marketing and Advertising Code states that "Brewers should require disclosure of a viewer's birthdate with a message indicating that the brewers' products are intended only for those of legal drinking age." Neither the passive nor the gate with a "yes" or "no" option "require disclosure of a viewer's birthdate." Rather, they ask only that the viewer confirm that his or her age is 21 or older. Moreover, the FTC's March 2014 report on Self-Regulation in the Alcohol Industry, includes FTC recommendations, including the recommendation that "age gates on company websites should require consumers to enter their date of birth, rather than simply asking consumers to verify that they are of legal drinking age." Thus, if your website does not currently require the user to actually enter a date of birth before gaining access, you likely want to update your age gate to comply with the Brewers Association's Code and the FTC's recommendations.

The Brewers Association's Code also states that the same type of age gates are required "at the point of download for permanent use media with or without access to the brewer's website." Thus, if the brewery has content on its webpage that can be downloaded by a user for future use, like a podcast, an article, or information about an upcoming event, the age gate requiring the entry of the user's birthdate and the message that the products are only intended for those of legal drinking age must appear before that element can be downloaded.

However, websites are not the only virtual breweries in cyberspace. For example, there are there are on-line advertisements that may have interactive features. If a brewery's ad campaign includes electronic media that allows a viewer to click on it and enter a new page, take a survey or the like, it must first have an age gate under the Brewers Association Code.

Another, and oft-used virtual brewery is social media. Most, if not all breweries use social media to drive craft beer drinkers to their websites and tasting rooms. Facebook, Twitter, Instagram, and YouTube are often used to announce new releases, special events, live music, and other happenings at breweries. While social media is often a successful and inexpensive way to increase visibility, it too is a gated community. The Brewers Association's Code states that "if a host or sponsor of a third party digital advertising platform is able to use registration or technological means to restrict access to the platform by persons below the legal drinking age, brewers should require that the methods used to restrict underage access be applied to their advertising and marketing materials." Similarly, the FTC's 2014 Recommendations and Conclusions to its Self-Regulation in the Alcohol Industry's Report states that it "encourages industry members to take advantage of age-gating technologies offered by social media, particularly YouTube, and to continue to develop such technologies as new media emerge." In other words, if the social media platform offers an age gate, brewers should use it. Some examples of social media where age gates are available include YouTube, Twitter, Facebook (which can block users from accessing your page using the birthdate that was entered when he or she joined Facebook – if the brewery contacts its account representative and specifically asks Facebook to do so), and Instagram (which, again, requires the brewery to work with its account representative in order activate the age gate). While this is not an exhaustive list of social media that offer age gates, is illustrative of what your brewery should be doing to check those IDs before allowing beer lovers to access your virtual brewery.

The bottom line is that breweries must be as vigilant checking IDs at their virtual breweries as they are at their brick and mortar breweries. If your virtual brewery does not have active age gates, there is no time like the present to start checking those IDs.

Topics: Promotions
Contact Verrill at (855) 307 0700