Happy Hour Advertising and Unhappy Legal Complications

A recent study showed that men are more creative when drinking beer. Whether this is true or not, the study may lead to bars and restaurants being more bold in advertising their happy hours. Indeed, restaurants and bars are increasingly turning to social media and mobile campaigns to promote happy hour specials. They may advertise on their websites or their Facebook pages, or they may push messaging via cell phones.


Happy hour advertising may seem like a great way to draw in traffic, but before you launch your next happy hour advertising campaign, have you checked to see if you are in a state that regulates happy hours or advertising of happy hours or drink specials? Most states allow these practices. Indeed, New Hampshire just changed its law in July, 2011 to permit advertising of happy hours outside of their establishments. Yet, there are some states that still are unhappy with happy hours.


Recently, Virginia legislators withdrew a bill that would have enabled Virginia bars and restaurants to advertise drink specials and happy hours on social media. Concerns about underage drinking killed the measure before it even got to a vote. Instead, establishments within Virginia must continue to comply with a statute from the 1980s that prohibits advertising happy hours and drink specials outside the actual venue. It also specifically outlaws such advertising in electronic media, which is defined to include radio, TV, or Internet.


Virginia is not alone in prohibiting the advertising of happy hours. In Oregon, for instance, the Oregon Liquor Control Commission has a rule that prohibits advertising specific price discounts although a restaurant can advertise a general happy hour. Similarly, Oklahoma prohibits the advertising or offer of a happy hour as a means or inducement to stimulate the consumption of alcoholic beverages.


A few states, such as Utah and Massachusetts, have complete bans on happy hours. In March, 2011, Utah Governor Gary Herbert signed in law a provision stating that drink specials and happy hours are illegal in the state of Utah. Massachusetts has been struggling with its ban, as bars lobby to have the same rights as casinos, but to date, there have been no updates.


Here are best practices for advertising of happy hours:

1)   Stay abreast of changing laws.

2)   If you are a franchisor, you should provide legal updates to your franchisees.

3)   Look closely at the wording of existing statutes. Just because the happy hour itself is legal, does not mean that advertising the happy hour is legal. In addition, there may be restrictions on how or when you can advertise your drink specials or happy hour pricing.

4)   Some states, like California, regulate using alcohol as a prize in a giveaway.

5)   Remember that even if happy hour is lawful, if you are an alcohol producer or distributor, there are different laws that apply to you than to retailers.

6)   Look at the terms and conditions of the social media site in which you wish to advertise. Some may prohibit advertising relating to alcohol in general.

7)   Be careful of advertising more than the price of your drink specials. Any health related statements, such as “lose weight at our low carb beer happy hour”, could be subject to regulation by the Alcohol Beverage Commission of the state. Statements like “I’m more creative when I drink beer” may be problematic, in spite of any scientific studies to the contrary. In general, advertisements related to alcohol are subject to higher scrutiny. Legal counsel should review them before they run.


Copyright Kyle-Beth Hilfer, P.C. 2012. Kyle-Beth Hilfer is an advertising and marketing attorney. She regularly advises clients on advertising and marketing strategies, including pricing claims and review of copy for legality. Ms. Hilfer is of Counsel to Collen IP. To contact Ms. Hilfer, please visit her FohBoh profile or tweet her @kbhilferlaw.


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Tags: advertising, drinkspecials, happyhours, legal


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