Sensible alcohol promotions in the silly season - avoiding the legal traps

Monday 5 December 2016

Authors: Marija Batistich and Kristin Wilson

​​​First published in NZ Winegrower, December-January 2016/17 edition.​​​​

As the festive season approaches, it is important to remember the restrictions on promotions relating to the sale of alcohol under the Sale and Supply of Alcohol Act 2012.

Social media, emails, radio and other advertisements

It is now common practice to advertise discounts and sales on social media and through email campaigns as well as more traditional methods of advertising (e.g. print, radio and television advertisements). These advertisements will be considered to be taking place OFF your licenced premises. 

It is important to ensure that when you advertise through these mediums, you do not promote or advertise in a way that leads people, or is “likely to lead people”, to believe that the price is 25% or more below the price at which the alcohol is ordinarily sold. You will be committing an offence if you do.

The “likely to lead people” part of that offence is important. We have noticed that a few businesses have tried to be clever with how they market their discounts. This ranges from not including a recommended retail price (RRP) or a saving to implying large discounts by stating that the “prices are too good to advertise”. It also includes using adjectives that suggest there are massive discounts awaiting them in store or on the licensed website, for example “crazy deals inside” or “massive deals on favourite wines”. Unfortunately, as this type of behaviour makes customers likely to believe that the price is 25% or more below the usual price, this could amount to a breach of the Act.  

Gifts, competitions and free alcohol

It is also an offence outside licenced premises to undertake any promotion that involves giving away free products or services to customers (or entry into a promotion), upon their purchase of an alcoholic product. This restricts promotions that might:

  • award customers free wine glasses or cooler bags upon purchase of a bottle, or
  • require a customer to purchase alcohol to be “in the draw to win”. 

Inside licensed premises, advertising these types of promotions is permitted, provided the offer only relates to the buying of alcohol on those premises and cannot be “seen or heard” from outside the premises. 

Any competitions that require an entrant to purchase anything cannot have alcohol as a prize, as this is prohibited by the Gambling Act regulations. Otherwise, advertising free alcohol can only be done where the free alcohol is:

  • a complimentary sample of alcohol for consumption on an licensed premises, or
  • only advertised on licensed premises, where the advertisement cannot be seen or heard outside the premises. 

Discounts on your licensed premises

On licensed premises, there are fewer restrictions, assuming that the advertisements cannot be “seen or heard” from outside the premises. You can advertise free alcohol, and you may advertise discounts of greater than 25%. This means that you can run a “buy one, get one free” promotion, or a “free” glass of wine promotion, but only if those promotions can only be seen or heard on the licensed premises. 

However, with any advertisements or promotions, you must ensure that you aren’t doing anything that encourages (or is likely to encourage) people to consume an excessive amount of alcohol. There is no threshold on the highest discount you can offer your customers other than this overarching requirement. 

Advertising Standards Authority’s Code for Advertising and Promotion of Alcohol

When creating your advertisements, it is important to remember the Advertising Standards Authority’s (ASA) principles for alcohol advertising. These principles and their supporting guidelines can be accessed in full on the ASA’s website, but in summary:

  • Alcohol advertising and promotions should observe a high standard of social responsibility. 
  • Alcohol advertising and promotions shall be consistent with the need for responsibility and moderation in alcohol.
  • Alcohol advertising and promotions shall be directed at adult audiences. Alcohol advertising and promotions shall not be directed at minors nor have strong or evident appeal to minors in particular. This applies to both content and placement.
  • Sponsorship advertisements shall clearly and primarily promote the sponsored activity, team or individual. The sponsor, the sponsorship and items incidental to them, may be featured only in a subordinate manner.

Why is this important?

We recommend that all sellers and suppliers of alcoho​​l carefully consider their advertising campaigns in the lead up to Christmas. The penalties for “irresponsible promotion” are significant, so if in doubt – just ask! 

Our Bell Gully team frequently advises on advertising and promotions in the context of the Sale and Supply of Alcohol Act 2012. 


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Kristin Wilson

    Senior Associate Auckland
  • Andrew Beatson

    Partner Wellington
Related areas of expertise
  • Food, beverage and hospitality