In May 2022, when the Federal Trade Commission (FTC) proposed updates to its Guides Concerning Use of Endorsements and Testimonials in Advertising (Guides), it had been 13 years since the Guides were updated. Much has changed in the way that businesses marketed and sold their brands, products, and services over that period. While the use of social media marketing has been well established for the better part of the last decade, the use of social media influencers—that is, people who use their expertise, knowledge, and/or celebrity to promote ideas, products, services, and brands via the internet—has seen a dramatic uptick since the period preceding the COVID pandemic and is now estimated to be a $21 billion industry in its own right. The rise of this marketing approach—and the increasingly prevalent lawsuits against influencers and the companies they promote—played no small part in the FTC’s reconsideration of previous guidance, as evident from the finalized guidelines which were released June 29, 2023.

The question going forward is to what degree the new guidelines will change the way marketers approach the use of social media influencers. To get at the issue, it is helpful to review the substance of the FTC’s revisions.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently proposed amendments to 27 CFR Part 4 that would allow winemakers to reference added distilled spirits on labels and in advertisements. Currently, wine labels and advertisements are prohibited from including statements indicating that a wine contains a distilled spirit unless the wine is required to bear a statement of composition which references the use of a distilled spirit. While this 1930’s prohibition sought to protect consumers from misinformation, the TTB acknowledges that as the wine industry has evolved, the regulation has become inconsistent with the TTB’s mission. Allowing this additional information provides manufacturers flexibility and empowers them to communicate with consumers more accurately about their wine products.