W. Va. Code R. § 175-4-12

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 175-4-12 - Advertising

12.1. General prohibition. -- All advertising of wine which encourages intemperance, makes the consumption of alcoholic liquor appear to be glamorous, is lewd or obscene, induces minors to purchase, or tends to deceive or misrepresent, is hereby prohibited. Federal law, as interpreted by the ABCC, provides the following guidelines relative to acceptable and prohibited advertising of wine.

12.2. Permissible media. -- Printed advertising of wine in West Virginia is limited to billboards, newspapers, magazines and similar publications, internet or other electronic media and radio and television.

12.3. Application. -- No person engaged in business as a producer, processor, broker, manufacturer, bottler, importer, wholesaler, direct shipper or retailer of wine, may directly or indirectly, or through an affiliate, publish or disseminate or cause to be published or disseminated in any billboard, newspaper, magazine or similar publication any advertisement of wine, unless the advertisement is in conformity with this rule. This rule does not apply to the publisher or standardized outdoor advertising company of any billboard, newspaper, magazine or similar publication, unless he, she or it is engaged in business as a producer, manufacturer, bottler, importer, wholesaler, direct shipper or retailer of wine, directly or indirectly, or through an affiliate.

12.4. Mandatory statements.

12.4.a. Responsible advertiser. -- An advertisement of wine shall state the name and address of the producer, manufacturer, bottler, importer, direct shipper or wholesaler responsible for its publication. The advertisement need not state the street name and number.

12.4.b. Class, type and distinctive designation. -- The advertisement shall contain a conspicuous statement of the class and type, or other designation of the product corresponding with the complete designation which appears on the brand label of the product.

12.4.c. Alcoholic content. -- The advertisement shall state the alcoholic content of the wine advertised in the manner and form in which it appears on the wine labels.

12.5. Lettering. Conspicuousness of mandatory statements. -- Statements required to be stated in any written, printed or graphic advertisement shall appear in lettering or type of a size, kind and color sufficient to render them both conspicuous and readily legible. In particular:

12.5.a. Required information shall be stated against a contrasting background and in type or lettering which is at least the equivalent of eight (8) point type;

12.5.b. Required information shall be stated so as to appear to be a part of the advertisement and shall not be separated in any manner from the remainder of the advertisement;

12.5.c. Where an advertisement relates to more than one product, the required information shall appear in such a manner as to clearly indicate the particular product to which it is applicable; and

12.5.d. Required information may not be buried or concealed in unrequired descriptive matter or decorative designs.

12.6. Prohibited statements -- Generally.

12.6.a. Restrictions. -- An advertisement may not contain:

12.6.a.1. Any statement that is false or misleading in any material particular. For example, the reproduction of medals or facsimiles of awards, when no medals or awards have been given or where the medals or awards were not given on a competitive or comparative basis are prohibited;

12.6.a.2. Any statement that is disparaging of a competitor's product;

12.6.a.3. Any statement, design, device or representation which is obscene, lewd or indecent;

12.6.a.4. Any statement, design, device or representation of, or relating to, analyses, standards or tests, irrespective of falsity which is likely to mislead the consumer. For example, an advertisement may not contain a statement such as "Analyzed by the laboratory and found to be pure and free from deleterious ingredients," or "Tested and approved. Signed by the Research Institute;"

12.6.a.5. Any statement, design, device or representation of, or relating to, any guaranty, irrespective of falsity, which is likely to mislead the consumer. Nothing in this section shall prohibit the use of any enforceable guaranty in substantially the following form:

"We will refund the purchase price to the purchaser if he is in any manner dissatisfied with the contents of this package."

Blank to be filled in with the name of person making guaranty; and

12.6.a.6. Any statement that the product is produced, made, bottled, packed or sold under, or in accordance with, any authorization, law, rule or regulation of any municipality, county or state, federal or foreign government unless such statement is required or specifically authorized by the laws, rules or regulations of such government. If a municipal, county, state or federal permit number is stated, it may not be accompanied by any additional statement relating thereto.

12.6.b. Statements inconsistent with labeling. -- Advertisement may not contain any statement concerning a brand or lot of wine that is inconsistent with any statement on the labeling thereof.

12.6.c. Curative and therapeutic effects. -- Advertisement may not contain any statement, design or device representing that the use of any wine has curative or therapeutic effects if the statement is untrue in any particular or tends to create a misleading impression. For example, advertisements may not contain statements such as " is good for you" or "Conducive to well-being."

12.6.d. Place of origin. -- An advertisement may not represent that wine was manufactured in, or imported from, a place or country other than that of its actual origin, or was produced or processed by one who was not in fact the actual producer.

12.6.e. Flags, seals, coats of arms, crests and other insignia. -- No advertisement may contain any statement, design, device or pictorial representation of, or relating to, or capable of being construed as relating to the armed forces of the United States, or of the American Flag, any state flag or any emblem, seal, insignia or decoration associated with any such flag or the Armed Forces of the United States. No advertisement may contain any statement, device, design or pictorial representation of or concerning any flag, seal, coat of arms, crest or other insignia, likely to falsely lead the consumer to believe that the product has been endorsed, made or used by, or produced for, or under the supervision of, or in accordance with the specifications of the government, organization, family or individual with whom such flag, seal, coat of arms, crest or insignia is associated.

12.7. Restrictions.

12.7.a. An advertisement may not contain any statement of a bonded wine cellar and bonded winery numbers unless stated in direct conjunction with the name and address of the person operating the winery or storeroom. The statement of a bonded wine cellar and bonded winery number may be made in the following form: "Bonded Wine Cellar No. __," "Bonded Winery No. __," "B.W.C. No. __," "B.W. No. __." No additional reference to the statement may be made, nor shall any use be made of the statement that may convey the impression that the wine has been made or matured under United States government or any state government supervision or in accordance with United States government or any state government specifications or standards.

12.7.b. Any statement, design, device or representation which relates to alcoholic content or which tends to create the impression that a wine is "Unfortified" or has been "Fortified," or has intoxicating qualities, or contains distilled spirits (except for a reference to distilled spirits in a statement of composition where such statement is required by this rule to appear as a part of the designation of the product) is prohibited.

W. Va. Code R. § 175-4-12