Title 804 | Chapter 001 | Regulation 102
SUPERSEDED
This document is no longer current.
PUBLIC PROTECTION CABINET
Department of Alcoholic Beverage Control
(New Administrative Regulation)
804 KAR 1:102.General advertising practices.
Section 1.
Definition. "Social media" means all forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content.Section 2.
(1)
A licensee may use outdoor advertising.(2)
If outdoor advertising is used by a manufacturer, producer, brewer, winery, distributor, or wholesaler, it shall not:(a)
Include a retail licensee's name or business designation (DBA); or(b)
Refer to a retail licensee in any other way.Section 3.
A licensee may advertise in material directed to the home or business of a consumer if the advertising material is in conformity with KRS 244.130 and this administrative regulation.Section 4.
(1)
Except as provided by subsections (2) and (3) of this section, advertising novelties may be used.(2)
A licensee shall not require the purchase or consumption of an alcoholic beverage as a condition for the sale, gift, or reduction in price of an advertising novelty.(3)
Except as provided by KRS 244.590(2)(a), a malt beverage distributor shall not sell, give away, or furnish advertising novelties, in any manner to a retail licensee.Section 5.
A licensee may advertise by means of radio and television.Section 6.
A licensee may advertise by means of the Internet and social media.Section 7.
(1)
A licensee may sponsor or cosponsor athletic leagues, tournaments, contests, and charitable events if the consumption or purchase of alcoholic beverages is not a requirement for participation.(2)
A licensee sponsoring or cosponsoring an event described in subsection (1) of this section upon a retail licensed premises shall not require the retail licensee to purchase, sell, or distribute the products of the sponsoring licensee as a condition for participation in or in connection with the event.Section 8.
A licensee shall not use the terms "free", "complimentary", or any other terms, which imply or suggest giveaways in the advertising of alcoholic beverages.Section 9.
A licensee shall not advertise a product, service, or activity if the licensee is prohibited by statute or administrative regulation from selling, providing, or conducting it.Section 10.
This administrative regulation shall not be interpreted to relate to direct shipping.ALLYSON C TAYLOR, Commissioner
RAY PERRY, Secretary
APPROVED BY AGENCY: April 14, 2022
FILED WITH LRC: April 14, 2022 at 3:48 p.m.
PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this administrative regulation shall be held at 9:00 a.m. EST on June 27, 2022 at 500 Mero Street, Room 127CW, Frankfort, Kentucky 40601. The hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the administrative regulation. Individuals interested in being heard at this hearing shall notify this agency of their intention to attend and comment in writing at least five workdays prior to the hearing. If no notification of intent to attend the hearing is received by that date, the hearing may be cancelled. If you do not wish to be heard at the public hearing, you may submit written comments on the administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. Written comments shall be accepted through 11:59 p.m. on June 30, 2022. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person below.
CONTACT PERSON: Joshua Newton, General Counsel, Department of Alcoholic Beverage Control, 500 Mero Street, 2 NE #226, Frankfort, Kentucky 40601, phone (502) 782-0770, fax (502) 564-4850, email Joshua.Newton@ky.gov.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Joshua Newton
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes standards for advertising in a manner consistent with modern marketing practices, pursuant to KRS 244.130.
(b) The necessity of this administrative regulation:
KRS 244.130 authorizes alcoholic beverage licensees to advertise without limitation unless prohibited by the Board in an administrative regulation. This administrative regulation replaces and renews an administrative regulation that inadvertently expired due to the inaction of the Department.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
This administrative regulation conforms to KRS 241.060, which authorizes the Board to promulgate reasonable administrative regulations governing the supervision of the manufacture, sale, and trafficking of alcoholic beverages, and conforms to KRS 244.130 by not prohibiting advertising in newspapers, magazine, periodicals with general circulation, promotional advertising on radio or television limited to no more than the name of the licensee and its products, promotional advertising containing the names of establishments or products displayed on uniforms or equipment of sporting teams, promotional advertising mailed or delivered to a consumer’s residence, free consumer-branded nonalcoholic novelty items and production byproducts given to distillery visitors over the age of 21 who participated in a distillery tour conducted by a bona fide church or charitable organization.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation previously assisted and will continue to assist in preventing advertising that the Board has deemed inappropriate for alcoholic beverage licensees.
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation:
NA
(b) The necessity of the amendment to this administrative regulation:
NA
(c) How the amendment conforms to the content of the authorizing statutes:
NA
(d) How the amendment will assist in the effective administration of the statutes:
NA
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
This administrative regulation affects all licensees who advertise products they manufacture or sell.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:
Regulated entities will not be required to undertake any new or unknown action to comply with this administrative regulation. The administrative regulation had been in place for more than seven years before its inadvertent expiration. This administrative regulation limits actions that can be taken rather than requiring actions to be taken.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
Compliance with this administrative regulation will present no cost to regulated entities.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
No benefits will accrue to licensed entities.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
There is no cost to the administrative body to implement this regulation.
(b) On a continuing basis:
There are no ongoing costs to the administrative body as a result of implementation of this administrative regulation.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
Because there is no cost associated with implementation and enforcement of this administrative regulation, no funding will be required.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment:
Implementation of this administrative regulation will require no increase in fees or funding.
(8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees:
This administrative regulation did not establish any fees, and did not directly or indirectly increase any fees.
(9) TIERING: Is tiering applied?
Tiering is not applied because this will affect all regulated entities equally.
FISCAL NOTE ON STATE OR LOCAL GOVERNMENT
(1) What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation?
The Department of Alcoholic Beverage Control and local Alcoholic Beverage Control administrators.
(2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 244.130, 241.060(1).
(3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.
If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year?
This administrative regulation will not result in increased revenues to any state or local government entities.
(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years?
This administrative regulation will not result in increased revenues to any state or local government entities in subsequent years.
(c) How much will it cost to administer this program for the first year?
There are no costs associated with administration of this regulation.
(d) How much will it cost to administer this program for subsequent years?
There are no costs associated with administration of this regulation in subsequent years.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
Revenues (+/-):
Expenditures (+/-):
Other Explanation:
PUBLIC PROTECTION CABINET
Department of Alcoholic Beverage Control
(New Administrative Regulation)
804 KAR 1:102.General advertising practices.
Section 1.
Definition. "Social media" means all forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content.Section 2.
(1)
A licensee may use outdoor advertising.(2)
If outdoor advertising is used by a manufacturer, producer, brewer, winery, distributor, or wholesaler, it shall not:(a)
Include a retail licensee's name or business designation (DBA); or(b)
Refer to a retail licensee in any other way.Section 3.
A licensee may advertise in material directed to the home or business of a consumer if the advertising material is in conformity with KRS 244.130 and this administrative regulation.Section 4.
(1)
Except as provided by subsections (2) and (3) of this section, advertising novelties may be used.(2)
A licensee shall not require the purchase or consumption of an alcoholic beverage as a condition for the sale, gift, or reduction in price of an advertising novelty.(3)
Except as provided by KRS 244.590(2)(a), a malt beverage distributor shall not sell, give away, or furnish advertising novelties, in any manner to a retail licensee.Section 5.
A licensee may advertise by means of radio and television.Section 6.
A licensee may advertise by means of the Internet and social media.Section 7.
(1)
A licensee may sponsor or cosponsor athletic leagues, tournaments, contests, and charitable events if the consumption or purchase of alcoholic beverages is not a requirement for participation.(2)
A licensee sponsoring or cosponsoring an event described in subsection (1) of this section upon a retail licensed premises shall not require the retail licensee to purchase, sell, or distribute the products of the sponsoring licensee as a condition for participation in or in connection with the event.Section 8.
A licensee shall not use the terms "free", "complimentary", or any other terms, which imply or suggest giveaways in the advertising of alcoholic beverages.Section 9.
A licensee shall not advertise a product, service, or activity if the licensee is prohibited by statute or administrative regulation from selling, providing, or conducting it.Section 10.
This administrative regulation shall not be interpreted to relate to direct shipping.ALLYSON C TAYLOR, Commissioner
RAY PERRY, Secretary
APPROVED BY AGENCY: April 14, 2022
FILED WITH LRC: April 14, 2022 at 3:48 p.m.
PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this administrative regulation shall be held at 9:00 a.m. EST on June 27, 2022 at 500 Mero Street, Room 127CW, Frankfort, Kentucky 40601. The hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the administrative regulation. Individuals interested in being heard at this hearing shall notify this agency of their intention to attend and comment in writing at least five workdays prior to the hearing. If no notification of intent to attend the hearing is received by that date, the hearing may be cancelled. If you do not wish to be heard at the public hearing, you may submit written comments on the administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. Written comments shall be accepted through 11:59 p.m. on June 30, 2022. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person below.
CONTACT PERSON: Joshua Newton, General Counsel, Department of Alcoholic Beverage Control, 500 Mero Street, 2 NE #226, Frankfort, Kentucky 40601, phone (502) 782-0770, fax (502) 564-4850, email Joshua.Newton@ky.gov.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Joshua Newton
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes standards for advertising in a manner consistent with modern marketing practices, pursuant to KRS 244.130.
(b) The necessity of this administrative regulation:
KRS 244.130 authorizes alcoholic beverage licensees to advertise without limitation unless prohibited by the Board in an administrative regulation. This administrative regulation replaces and renews an administrative regulation that inadvertently expired due to the inaction of the Department.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
This administrative regulation conforms to KRS 241.060, which authorizes the Board to promulgate reasonable administrative regulations governing the supervision of the manufacture, sale, and trafficking of alcoholic beverages, and conforms to KRS 244.130 by not prohibiting advertising in newspapers, magazine, periodicals with general circulation, promotional advertising on radio or television limited to no more than the name of the licensee and its products, promotional advertising containing the names of establishments or products displayed on uniforms or equipment of sporting teams, promotional advertising mailed or delivered to a consumer’s residence, free consumer-branded nonalcoholic novelty items and production byproducts given to distillery visitors over the age of 21 who participated in a distillery tour conducted by a bona fide church or charitable organization.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation previously assisted and will continue to assist in preventing advertising that the Board has deemed inappropriate for alcoholic beverage licensees.
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation:
NA
(b) The necessity of the amendment to this administrative regulation:
NA
(c) How the amendment conforms to the content of the authorizing statutes:
NA
(d) How the amendment will assist in the effective administration of the statutes:
NA
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
This administrative regulation affects all licensees who advertise products they manufacture or sell.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:
Regulated entities will not be required to undertake any new or unknown action to comply with this administrative regulation. The administrative regulation had been in place for more than seven years before its inadvertent expiration. This administrative regulation limits actions that can be taken rather than requiring actions to be taken.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
Compliance with this administrative regulation will present no cost to regulated entities.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
No benefits will accrue to licensed entities.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
There is no cost to the administrative body to implement this regulation.
(b) On a continuing basis:
There are no ongoing costs to the administrative body as a result of implementation of this administrative regulation.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
Because there is no cost associated with implementation and enforcement of this administrative regulation, no funding will be required.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment:
Implementation of this administrative regulation will require no increase in fees or funding.
(8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees:
This administrative regulation did not establish any fees, and did not directly or indirectly increase any fees.
(9) TIERING: Is tiering applied?
Tiering is not applied because this will affect all regulated entities equally.
FISCAL NOTE ON STATE OR LOCAL GOVERNMENT
(1) What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation?
The Department of Alcoholic Beverage Control and local Alcoholic Beverage Control administrators.
(2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 244.130, 241.060(1).
(3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.
If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year?
This administrative regulation will not result in increased revenues to any state or local government entities.
(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years?
This administrative regulation will not result in increased revenues to any state or local government entities in subsequent years.
(c) How much will it cost to administer this program for the first year?
There are no costs associated with administration of this regulation.
(d) How much will it cost to administer this program for subsequent years?
There are no costs associated with administration of this regulation in subsequent years.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
Revenues (+/-):
Expenditures (+/-):
Other Explanation: