other than that of their actual origin, or were produced or processed by one who was not in fact the actual producer or processor. (f) Confusion of brands. Two or more different brands or lots of distilled spirits shall not be advertised in one advertisement (or in two or more advertisements in one issue of a periodical or newspaper, or in one piece of other written, printed, or graphic matter) if the advertisement tends to create the impression that representations made as to one brand or lot apply to the other or others, and if as to such latter the representations contravene any provisions of this subpart or are in any respect untrue. (g) Flags, seals, coats of arms, crests, and other insignia. An advertisement shall not contain any statement, design, device, or pictorial representation which the Director finds relates to, or is capable of being construed as relating to the armed forces of the United States, or the American flag, or any emblem, seal, insignia, or decoration associated with such flag or armed forces; nor shall any advertisement contain any statement, design, device, or pictorial representation of or concerning any flag, seal, coat of arms, crest, or other insignia, likely to mislead 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. (h) Deceptive advertising techniques. Subliminal or similar techniques are prohibited. "Subliminal or similar techniques," as used in this part, refers to any device or technique that is used to convey, or attempts to convey, a message to a person by means of images or sounds of a very brief nature that cannot be perceived at a normal level of awareness. [T.D. 7020, 34 FR 20337, Dec. 30, 1969, as amended by T.D. ATF-180, 49 FR 31674, Aug. 8, 1984] § 5.66 Comparative advertising. (a) General. Comparative advertising shall not be disparaging of a competitor's product. (b) Taste tests. (1) Taste test results may be used in advertisements comparing competitors' products unless they are disparaging, deceptive, or likely to mislead the consumer. (2) The taste test procedure used shall meet scientifically accepted procedures. An example of a scientifically accepted procedure is outlined in the Manual on Sensory Testing Methods, ASTM Special Technical Publication 434, published by the American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103, ASTM, 1968, Library of Congress Catalog Card Number 6815545. (3) A statement shall appear in the advertisement providing the name and address of the testing administrator. [T.D. ATF-180, 49 FR 31674, Aug. 8, 1984] house", and provide the e these prohibitions. This pa attempt to enumerate all d tices prohibited by section Act. Nothing in this part sh to exempt any person fro quirements of any State law tion. § 6.2 Territorial extent. This part applies to tl States of the United State trict of Columbia, and Puert § 6.3 Application. (a) General. This part ap to transactions between indu bers and retailers. It does no transactions between two members (for example, betw ducer and a wholesaler), or t tions between an industry me a retailer wholly owned by th try member. (b) Transaction involvi agencies. The regulations in apply only to transactions be dustry members and State operating as retailers as defin part. The regulations do not State agencies with regard wholesale dealings with retail § 6.4 Jurisdictional limits. (a) General. The regulatio part apply where: (1) The industry member retailer to purchase distille wine, or malt beverages from dustry member to the exc whole or in part of products s fered for sale by other p interstate or foreign commer (2) If: (i) The inducement i the course of interstate of commerce; or (ii) The industry member e the practice of using an indu such an extent as substantia strain or prevent transaction state or foreign commerce in products; or (iii) The direct effect of th ment is to prevent, deter, hin strict other persons from sell fering for sale any such pr such retailer in interstate o commerce. (b) Malt beverages. In the case of malt beverages, this part applies to transactions between a retailer in any State and a brewer, importer, or wholesaler of malt beverages inside or outside such State only to the extent that the law of such State imposes requirements similar to the requirements of section 5(b) of the Federal Alcohol Administration Act (27 U.S.C. 205(b)), with respect to similar transactions between a retailer in such State and a brewer, importer, or wholesaler or malt beverage in such State, as the case may be. Subpart B-Definitions § 6.11 Meaning of terms. As used in this part, unless the context otherwise requires, terms have the meanings given in this section. Any other term defined in the Federal Alcohol Administration Act and used in this part shall have the meaning assigned to it by that Act. Act. The Federal Alcohol Administration Act. Equipment. All functional items such as tap boxes, glassware, pouring racks, and similar items used in the conduct of a retailer's business. Industry member. Any person engaged in business as a distiller, brewer, rectifier, blender, or other producer, or as an importer or wholesaler, of distilled spirits, wine or malt beverages, or as a bottler, or warehousemen and bottler, of distilled spirits; industry member does not include an agency of a State or political subdivision thereof, or an officer or employee of such agency. Product. Distilled spirits, wine or malt beverages, as defined in the Federal Alcohol Administration Act. Retailer. Any person engaged in the sale of distilled spirits, wine or malt beverages to consumers. A wholesaler who makes incidental retail sales representing less than five percent of the wholesaler's total sales volume for the preceding two-month period shall not be considered a retailer with respect to such incidental sales. Retailer establishment. Any premises where distilled spirits, wine or malt beverages are sold or offered for sale to consumers, whether for consumption on or off the premises where sold. Subpart C-Unlawful Inducements § 6.21 Application. Except as provided in Subpart D, it is unlawful for any industry member to induce, directly or indirectly, any retailer to purchase any products from the industry member to the exclusion, in whole or in part, of such products sold or offered for sale by other persons in interstate or foreign commerce by any of the following means: (a) By acquiring or holding (after the expiration of any license held at the time the FAA Act was enacted) any interest in any license with respect to the premises of the retailer; (b) By acquiring any interest in the real or personal property owned, occupied, or used by the retailer in the conduct of his business; (c) By furnishing, giving, renting, lending, or selling to the retailer, any equipment, fixtures, signs, supplies, money, services or other thing of value, subject to the exceptions contained in Subpart D; (d) By paying or crediting the retailer for any advertising, display, or distribution service; (e) By guaranteeing any loan or the repayment of any financial obligation of the retailer; (f) By extending to the retailer credit for a period in excess of the credit period usual and customary to the industry for the particular class of transactions as prescribed in § 6.65; or (g) By requiring the retailer to take and dispose of a certain quota of any such products. INTEREST IN RETAIL LICENSE § 6.25 General. Industry members are prohibited from inducing the purchases of a retailer by acquiring or holding any interest in any license (State, county or municipal) with respect to the premises of a retailer. § 6.26 Indirect interest. Industry member interest in retail licenses includes any interest acquired by corporate officials, partners, employees or other representatives of the industry member. Any interest in a retail license acquired by a separate corporation in which the industry member or its officials, hold ownership or are otherwise affiliated, is an interest in a retail license. § 6.27 Proprietary interest. (a) Complete ownership. Outright ownership of a retail business by an industry member is not prohibited. (b) Partial ownership. Less than complete ownership of a retail business by an industry member constitutes an interest in a retail license within the meaning of the Act. INTEREST IN RETAIL LICENSE § 6.31 General. Industry members are prohibited from inducing the purchases of retailers by acquiring an interest in real or personal property owned, occupied, or used by the retailer in the conduct of the business. § 6.32 Indirect interest. Industry member interest in retail property includes any interest acquired by corporate officials, partners, employees or other representatives of the industry member. Any interest in retail property acquired by a separate corporation in which the industry member or its officials, hold ownership or are otherwise affiliated, is an interest in retail property. § 6.33 Proprietary interest. (a) Complete ownership. Outright ownership of a retail business by an industry member is not prohibited. (b) Partial ownership. Less than complete ownership of a retail business by an industry member constitutes an interest in retail property within the meaning of the Act. § 6.34 Mortgages. The acquisition of a mortgage on a retailer's real or personal property by an industry member constitutes an in terest in the retailer's prope the meaning of the Act. § 6.35 Renting display space. The renting of display sp industry member at a retail ment constitutes an interest tailer's property within the of the Act. FURNISHING THINGS OF V § 6.41 General. Subject to the exceptions Subpart D, industry members hibited from inducing the p of a retailer by furnishing renting, lending or selling to tailer any equipment, fixture supplies, money, services o thing of value. § 6.42 Indirect inducement thro party arrangements. The furnishing, giving, renti ing or selling of equipment, signs, supplies, money, serv other thing of value by an member to a third party, such tailer association or display o where the benefits resulting fr thing of value flow to individua ers, is the indirect furnishin thing of value within the me the Act. This section does not third parties from furnishing renting, lending, or selling equ fixtures, signs, supplies, mone ices, or things of value to which industry members may provide to retailers under Su of this part. § 6.43 Sale of equipment. A transaction in which equip sold to a retailer by an member, except as provided in and 6.89, is the selling of eq within the meaning of the Act less of how sold. Further, the tion by an industry member o cial price to a retailer for equ from an equipment company furnishing of a thing of value the meaning of the Act. § 6.44 Free warehousing. The furnishing of free warehousing by delaying delivery of distilled spirits, wine, or malt beverages beyond the time that payment for the product is received, or if a retailer is purchasing on credit, delaying final delivery of products beyond the close of the period of time for which credit is lawfully extended, is the furnishing of a service or thing of value within the meaning of the Act. § 6.45 Assistance in acquiring license. Any assistance (financial, legal, administrative or influential) given the retailer by an industry member in the retailer's acquisition of the retailer's license is the furnishing of a service or thing of value within the meaning of the Act. § 6.46 Outside signs. (a) Furnished to retailers. The furnishing of outside signs to retailers by an industry member is the furnishing of a thing of value within the meaning of the Act. (b) Benefiting a retailer. The placement by an industry member of a "billboard" or "spectacular" sign, advertising distilled spirits, wine, or malt beverages, on the wall or roof of a building adjacent to or occupied by a retailer is the furnishing of a thing of value within the meaning of the Act if (1) the sign contains a panel identify ing the retailer, or (2) the retailer is compensated, directly or indirectly (through a sign company), in conjunction with the placement of the sign. § 6.47 Item intended for consumers. Except as provided in §§ 6.87 and 6.93, the furnishing of things of value such as trading stamps, coupons, nonalcoholic mixers, pouring racks, and the like to retailers is the furnishing of a thing of value within the meaning of the Act regardless of whether the industry member intends for the items to be distributed free of charge to con sumers. PAYING FOR Advertising, DISPLAY OR DISTRIBUTION SERVICE § 6.51 General. Industry members are prohibited from inducing the purchases of a retailer by paying or crediting the retailer for any advertising, display or distribution service, whether or not the advertising, display or distribution service received is commensurate with the amount paid by the retailer. § 6.52 Cooperative advertising. An arrangement in which an industry member participates with a retailer in paying for an advertisement placed by the retailer constitutes paying the retailer for advertising within the meaning of the Act. § 6.53 Advertising in ballparks, racetracks, and stadiums. The purchase, by an industry member, of advertising on signs, scoreboards, programs, scorecards, and the like at ballparks, racetracks or stadiums, from the retail concessionaire constitutes paying the retailer for an advertising service within the meaning of the Act. § 6.54 Advertising in retailer publications. The purchase, by an industry member, of advertising in a retailer publication for distribution to consumers or the general public constitutes paying the retailer for advertising within the meaning of the Act. § 6.55 Display service. Industry member reimbursements to retailers for setting up product or other displays constitutes paying the retailer for rendering a display service within the meaning of the Act. § 6.56 Renting display space. A promotion whereby an industry member rents display space at a retail establishment constitutes paying the retailer for rendering a display service within the meaning of the Act. |