WINE LISTS AND WINE MENUS
Producers, Importers, or Wholesalers of Distilled Spirits, Wine,
or Malt Beverages and Others Concerned:
PURPOSE. The purpose of this circular is to inform industry members
that an ATF ruling will be published in the April-June quarterly
issue of the Alcohol, Tobacco and Firearms Bulletin. This ruling
will read substantially as follows:
The Bureau of Alcohol, Tobacco and Firearms has received a number
of inquiries regarding the giving, furnishing, or selling of wine
lists or wine menus to retail establishments. The wine lists or
wine menus at issue are those used primarily by restaurants as
comprehensive price listings of the various wines offered for sale
by the restaurants to their patrons. The menus also may contain
prices for other alcoholic beverages. These items usually contain
little or no advertising material and are, in most cases, a necessary
part of a restaurant's business, serving the same function as a food
or beverage menu.
Section 5(b) of the Federal Alcohol Administration Act (27 U.S.C. 205(b))
makes it unlawful, under certain jurisdictional limitations, for
producers, importers, or wholesalers of distilled spirits, wine, or
malt beverages to induce any retailer to purchase his products to the
exclusion, in whole or in part, of products sold or offered for sale
by others in interstate or foreign commerce, by furnishing, giving,
renting, lending, or selling to the retailer, any equipment, fixtures,
signs, supplies, money, services or other things of value, except as
permitted by regulation.
Regulations prescribed in 27 CFR 6.27 and 6.28 provide exceptions
from Section 5(b) for consumer advertising specialties and retailer
advertising specialties, respectively.
Section 6.28 provides an exception from Section 5(b) for retailer
advertising specialties such as trays, coasters, mats, menu cards,
meal checks, paper napkins, etc., which bear advertising matter and
which are primarily of value to the retailer as point of sale advertising
media. In order to fall within the intent of Section 6.28, the item's
primary value must be as point of sale advertising for the supplier's
product, and the utility value to the retailer must be secondary.
Wine lists and menus are primarily of value to the retailer as price
listings for wines and other products offered for sale and, therefore,
they are not retailer advertising specialties.
Accordingly, the reference to menu cards in Section 6.28 includes only
point of sale advertising material which may be attached to a menu and
not a wine menu itself. Since wine lists are not deemed to be retailer
advertising specialties, the monetary advertising limits of Section
6.28(b) and (c) are inapplicable, and regardless of cost, these items
are not considered to be within the exception provided by Section 6.28.
Section 6.27 describes consumer advertising specialties as such items as
ashtrays, bottle and can openers, corkscrews, paper shopping bags,
matches, printed recipes, wine lists, leaflets, blotters, postcards,
pencils, etc., which bear advertising matter, and which may be furnished,
given, or sold to a retailer for unconditional distribution to the
general public. The intent of this section is to permit suppliers to
give such advertising specialty items to retailers solely for the
purpose of redistribution to consumers. Therefore, Section 6.27 does
not authorize the distribution to retailers of wine lists or menus which
are used by the retailer as part of his restaurant business.
Held, wine lists or wine menus utilized by a restaurant as comprehensive
price listings of the various wines and other beverages served by the
restaurant are not retailer advertising specialties because they are
primarily of value as price listings of wines and other alcoholic
beverages offered for sale and are not the simple point of sale
advertising material contemplated by the reference to "menu cards" in
Section 6.28. Regardless of cost, if the other elements of 27 U.S.C.
205(b) are met, the furnishing, giving, renting, lending, or selling
of wine menus or lists of the type described above are prohibited by
Section 5(b) of the Act. Further, such items are not consumer
advertising specialties because they are used as part of the retailer's
business and are not furnished to retailers for the purpose of ultimate
distribution to the general public.
GPO 938 915