Aviation Gin ad subject of DISCUS code complaint and finding is a good reminder that industry advertising guidelines are sometimes at odds with inventiveness, humor, and parody… but a law or regulation would have to acknowledge those things.

Codes of responsible advertising rarely make room for innovation and humor. The typical inception and evolution of a code involves an industry pressed by regulators and legislators for change based on some issue or problem the public perceives and that outcry and reporting has brought to a fevered pique. The industry generally says “hey, we don’t need new laws or regulations, we’ll self-regulate, and to prove we can do that, here’s our code that does exactly what you were threatening to pass a law or regulation to do.” 

Alcohol is no exception. The responsible advertising codes of the various alcoholic beverage industry organizations are extensive – here are some:

Recently, the DISCUS code was invoked by a consumer complaining about a funny advertisement from Aviation Gin. Apparently the DISCUS code brooks no humor and fails to recognize parody. The Aviation Gin advertisement at issue:

is a parody of this Peloton advertisement from this holiday season that became the subject of derision where a husband bought his already fit wife a Peloton:

The ad from Aviation has all the telltale “in” references and utilizes the same actor. There’s the holiday setting, a toast to new beginnings, and there’s even an end statement: “You look great, by the way.” A reference to the never ending workouts and subject matter of the Peloton ad.

The DISCUS determination is apparently that the gulp is a depiction of a situation where alcohol is consumed excessively and in an irresponsible manner (see the DISCUS code No. 15). The DISCUS statement and finding takes umbrage with the fact that the industry member didn’t respond. But they had no obligation to respond as the oversight and review are non-binding, not obligatory, and issued from an agency that lacks legally granted authority to regulate the industry and its advertising. 

So, the industry organization has covered itself by making the determination and that’s it, right? Well, maybe. Some industry codes and industry organizations report non-responsive or unresolved issues to federal agencies. Which might be able to force a response, but, as in the case here, a federal agency looking to enforce some regulation or law would have to deal with a defense of parody and a burden of proof in showing that anyone would take the advertisement as a serious indication and endorsement of irresponsibility – which would be hard to do given the references and obvious interplay with the Peloton ad.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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