Under Biden administration, Federal Trade Commission has been takin’ far more activist stance than under prior administrations, Dems or Repubs. (Some say it’s just gone back to doing its job.) Latest volley came this week with first update in 25 years of guidelines governing marketing of food/bevs, supplements, OTC drugs and other items positioned as health-supporting. Among key changes relevant to bev marketers, it extends guidance covering dietary supplements to all health-related products, per summary from agency. It also reflects updates to other FTC guidance documents, including on endorsements and testimonials, area where it has cracked down in enforcement actions. And it brings “more emphasis on the fact that the FTC, as a general rule, expects high quality randomized, controlled human clinical trials” to substantiate health-related claims. The guidance incorporates learning from 200+ cases it’s brought since publishing Dietary Supplements: An Advertising Guide for Industry back in 1998.

In 42-page report, agency’s Bureau of Consumer Protection seeks to clarify its thinking via use of 52 real-world examples in which the culprits are not identified. To us, it’s eye-opening reading because examples in categories like energy drinks, probiotic drinks and protein shakes bear loud ring of familiarity, beyond those who were charged in the enforcement actions from which they’re drawn. Here are a few that might give bev marketers some pause. Report may not be your idea of fireside reading over holidays, but we urge readers to take a look soon. (The sub-headings below are ours, not the agency’s.)

Be Careful What You Leave Out    Among areas that may be tricky for bev marketers to get hands around, FTC stresses its view that an ad “can be deceptive because of what it fails to say,” citing as example an energy drink that “contains an ingredient that, when consumed daily over an extended period, can result in a significant increase in blood pressure. Even absent any representation about the product’s safety, the marketer should disclose this potentially serious risk.” Or take an ad for an herbal product that claims it’s natural pain remedy “without the side effects of over-the-counter pain relievers.” If there’s substantial evidence that the item can make some users nauseous, then that’s misleading, in FTC’s view.

Is Your Audience Easily Bamboozled?   Agency also emphasizes that it takes into account the sophistication of intended audience. So, “terminally ill consumers might be particularly susceptible to exaggerated cure claims,” it notes. Or take that old ploy of dressing actors in white lab coats (or Vitaminwater booth staffers at trade shows, back in the day). “A brochure for a weight-loss product shows images of doctors in white lab coats looking through microscopes, molecular structures, and a stack of medical journals,” it cites as example. “These images give an impression of scientific legitimacy and likely convey an implied claim that the product has been clinically proven to be effective for weight loss.” Then there’s magazine ad for kids’ nutritional drink that “features an image of the straw from the drink box encircling a child to create a barrier as another child sneezes in her direction,” per another example. “The image used in the ad likely implies that the product can help protect children from catching colds or other airborne infections.” Violators risk a time-out or worse from agency.

Fine Print Can Get You Fined    No more burying key qualifiers in the fine print or in vague phrasing. So if your website depicts people dressed in lab coats, “a fine print disclosure” in Terms & Conditions section of site stating that “no clinical study has been performed on the product” is inadequate, “both because it directly contradicts the claim and because it is not clear and conspicuous.”

Is Your Clinical Backing Relevant to Final Product, Not Just Component Ingredients?   Guidance makes clear that FTC will be scrutinizing support claims to insure they’re relevant to the product. It cites website for a sports drink that touts a “clinically tested ingredient” for improving blood flow and increasing endurance. To agency, that phrase “implies not just that the ingredient was tested, but also that the test results prove a benefit for blood flow and endurance” and that “the sports drink will provide those benefits.” That’s a red flag. “Because the drink also contains other ingredients, the marketer should consult with a qualified expert in the relevant field to determine whether experts in that field would generally require a clinical test of the sports drink itself, rather than the isolated ingredient, to confirm the blood flow and endurance benefits.”

Don’t Game the Clinicals   For those trying to capsulize complex data into streamlined marketing message, it’s a tough one: FTC wants the messaging to reflect “totality of the evidence.” It cites marketer of antioxidant-rich juice that claims daily consumption treats erectile dysfunction, citing a published 50-person controlled human clinical trial as support. The problem is, it disregards “an earlier, higher-quality unpublished 100-person study of the juice that failed to show any statistically significant improvement compared to the control group.” Turns out that the marketer, disliking results of first study, “changed the measured endpoint in the second study” to ensure better outcome. No go, FTC argues. “The marketer cannot selectively rely only on the favorable results of the second, lower-quality study. The erectile dysfunction treatment claims are not substantiated.”

Your Evidence Had Better Be Relevant    FTC cites marketer of a probiotic bev that cites study undertaken in Japan of different strain taken in capsule form. Agency view: Really? “The fact that the study used a different strain of probiotic, in a capsule form that may be more bioavailable than the drink, and administered to a population whose diet may be substantially different from the diet of U.S. consumers are significant differences that would affect whether the findings could reasonably be expected to translate to the advertised product,” it warns. Ditto a marketer that claims its energy drink helps increase alertness safely thanks to 2 active ingredients, “each of which is known to have central nervous system stimulant effects.” FTC is dubious because studies on individual ingredients “may not be sufficient to substantiate a safety claim about the combination product because the two active ingredients together may affect the body differently than they do individually.”

Traditional Ingredients Are Fine if You Don’t Overstep   It had no problem with herbal tea marketer who made claim, “Ancient remedy used for centuries to aid digestion. There is no scientific evidence that it works.” The trouble may start if marketer then throws in a testimonial from user who says the tea provides instant relief for her upset stomach. “That testimonial detracts from and may overwhelm the qualified nature of the claim,” agency believes.

Some might call it doggerel, and we won't vouch that it stands up with immortal poets like Milton, Longfellow and Shel Silverstein. But we kinda like the twist that Bonnie Herzog and her consumer staples team at Goldman Sachs have put on an old chestnut that they've contemporized for their emailed holiday greeting. (Not to be hypercritical, but one would think a team that's steeped in Nielsen data would have more interest in making their poem scan.)

Fresh off another record sales year and investment/distribution alliance with KDP, C4 marketer Nutrabolt is building a 75K-sq-ft new hq just west of Austin. It's breaking ground this month on new digs situated a coupla miles west of Capital of Texas Highway that are being developed in partnership with Riverside Resources for anticipated completion in 2024. It's likely to be well-appointed complex judging by Riverside's past record, which includes projects like Fifth & West luxe condo tower and Presidio mixed-use hub in Cedar Park, as local AustinInno blog noted . . . Mega-copacker Refresco Group closed on its acquisition of Tru Blu Beverages in Australia earlier this month, planting its flag on a new continent augmenting its presence in Europe and N Amer. Acquisition brings it 3 plants, in Sydney, Brisbane and Perth, joining 70+ in its core territories. But it ain't staying tru to blu: company is immediately being rebranded as Refresco . . . Journeyman marketer Mike Fedele is calling it quits tomorrow at Body Armor after a decade spent helping to establish it as disruptive force in sports drinks. Brand, of course, is being steadily integrated into its acquirer Coca-Cola. "Still working on what's next," former Vitaminwater marketer told us today, "but grateful for the opportunity to work with Mike Repole and the Body Armor team and help make sports drink history" . . . Another Sway Energy exec has transitioned with that brand to acquirer Golden Grail: Teyo Branwell, who was vp sales there and brought experience from Coca-Cola, Body Armor and Bang Energy. We'd just reported yesterday that Russ Kaffenberger had made transition.

Leave it to the frontman of iconoclastic rock band Iron Maiden to bring out the toughest language about big business and the big beer business during keynote speech at opening general session of the Craft Brewers Conference this morning. Rips on “the big boys,” as Bruce Dickinson called them, didn’t necessarily surprise anyone. In fact, he set up the way he distinguishes himself from (and a personal distaste for) corporate culture early on, ribbing the reactions of the “computer programmers” he speaks to at corporate functions. A “customer,” as opposed to a “fan,” is “a person who can walk away,” in Bruce’s view. “I hate customers. Everybody should hate customers,” he insisted. “You don’t want customers. You want fans. You want friends. You want people you can have a relationship with, the instant they walk into whatever you’re doing.” And that’s “the thing that the big boys in the brewing world are desperate, desperate, desperate to have,” he thinks. That’s why he believes “the big boys are so keen to buy all the brands.”

Not long after Craft Brew Alliance officially launched new biz unit, pH Experiment, starting with Pre Aperitivo Spritz, co adding another new brand to the mix in the bustling hard seltzer space. Pacer Low Proof Seltzer, with just 2% ABV, under 50 calories, less than 1g sugar, will launch this July “targeting leading chains in markets across the US,” co announced. It’ll be available in 3 flavors, Blood Orange, Melon & Mint and Meyer Lemon & Lavender, via variety 12pks and 6pks of Blood Orange (presumably its lead flavor). “What we understood more fully after last year’s research was that moderation means different things to different people in different occasions,” pH general manager Karmen Olsen stated in release. “We heard from many drinkers who said they wanted something that would help them pace themselves to stay in control.” Plus, this provides a unique point of differentiation within fast-growing hard seltzer category, she added. While Pre Aperitivo Spritz is only available in OR, CA, AZ and TN starting this Memorial Day, Pacer appears to be a bigger bet off the bat. Recall, CBA targeting $25 mil in revs from pH Experiment by 2025.

Coupla notable craft brewers announced new mkts recently. Bell’s continues to march across the country, adding WY this mo, and NV in Jun, co announced last week. In WY, Bell’s signed on with 6 distribs: Cheyenne Bev, Fremont Dist, Osprey Bevs, Tanager Bevs, Western Dist and Western WY Bevs. And in NV, Bell’s partnered with Blach Dist, Capital Bevs, Morrey Dist, Nevada Bev Co and Valley Dist. Recall, Bell’s added 8 states in 2018, and NV and WY will make 41 total states + DC and Puerto Rico (after pulling out of VA earlier this yr). New distribution didn’t provide as much of a boost last year, as Bell’s growth was slower than it’s been accustomed to in 2018 (shipments +3%). Yet Bell’s is pickin’ up pace in Q1 scans. Bell’s $$ grew 14% for latest 4 wks thru Mar 24 in IRI MULC, bringing $$ up 8% and volume up 10% YTD. Interestingly, sales accelerated even as flagship Bell’s Two Hearted slowed to +2% for 4 wks, suggesting that new Official Wheat hazy IPA off to a solid start, and perhaps this year’s Oberon (recently launched) is performing better after 2018 decline.

IPA ain’t just the lead craft style and still gaining share in off-premise channels. At $3.52 bil in sales in Nielsen CGA on-premise data, IPAs far and away biggest single style by $$ in craft, more than twice the size of #2, seasonals, the co’s Matt Crompton shared during Brewers Assn Power Hour last week. Tho IPA not growing as quickly as it is off premise, the style’s still up 2.8% for 52 wks thru 1/26, Matt shared, while seasonals just barely on the positive side of flat. Across total craft picture, Belgan witbiers (#3) just on the negative side of flat, with sales just under $1.5 bil in Nielsen CGA-tracked outlets. Number 4 style, Pale Ale, up 0.7%, only other style with over $1 bil in sales at $1.14 bil. Amber lager and red ales each off slightly.

Many of the lingering craft trends in scans have persisted thru Q1, including continued slower growth in tracked off-prem data. Craft grew $$ +2.9%, volume up 1.5% YTD thru Mar 24 in IRI multi-outlet + convenience data. Craft in supers up 1.9%, volume up 0.8%, while underdeveloped craft in c-stores grew $$ 4.8%, volume up 3.7%. And with IRI announcing its changed definition of total beer category to include “additional malt based alcohol products” that will boost FMB segment volume by 11-12%, and total beer volume by 0.5-1%, craft segment is now slightly losing share of total beer $$ YTD in IRI MULC. In supers, craft lost 0.26 share of $$ YTD thru Mar 24 to 22.2. And for latest 4 wks, craft $$ declined 0.3% and shed 0.34 share of total beer. Craft volume down 1.7% in supers for 4 wks, but only slipped 0.06 share.