Photo edit of Budweiser's new ad and transgender activist Dylan Mulvaney. Credit: Alexander J. Williams III/Pop Acta.
Photo edit of Budweiser's new ad and transgender activist Dylan Mulvaney. Credit: Alexander J. Williams III/Pop Acta.

A review by a member of the beer industry’s trade association find Budweiser’s partnership with a transgender social media influencer, which sent the company’s profits and revenue plunging, also violated rules against marketing beer to kids.

An opinion issued by Paul Summers, a former state appeals court judge and attorney general of Tennessee, found that Bud Light’s sponsorship of Dylan Mulvaney “violated the beer industry’s code prohibiting the marketing of alcohol to underage individuals,” reports U.S. Sen. Ted Cruz, who requested the review. The other two members of the board ruled Budweiser, a powerful force in the trade association, did not violate rules.

“Judge Summers’ opinion marks the first time a member of the three-person Code Compliance Review Board (CCRB) at the Beer Institute has ever found a brewer to have violated industry code,” a statement from Cruz notes.

“This is the first time a review board member—and notably, the board’s only lawyer—has concluded that a brewer violated industry code prohibiting the marketing of alcoholic beverages to underage individuals,” said Cruz.

As part of a marketing campaign, Budweiser produced a commemorative can for Mulvaney, a 28-year-old biological male who identifies and lives as a teenage girl. Mulvaney is reportedly popular on child-marketed social media sites for documenting his journey to “girlhood.”

“It is clear Mulvaney was chosen because he produces content for a younger audience, and therefore, his selection would violate the industry’s self-regulatory code. Judge Summers also rightly noted that Anheuser-Busch failed to provide the ‘reasonable documentation’ I requested about the brewer’s decision to choose Mulvaney, effectively withholding from the board and Congress crucial information about the company’s actions,” said Cruz.

Cruz notes:

Judge Summers writes: “Dylan Mulvaney has a persona wherein the actor looks and acts like a little girl. Mulvaney appeals to little children and often behaves like one.”

While the CCRB majority considered the Mulvaney ads in isolation, Judge Summers’ dissent faithfully applied the beer industry standard for advertising involving entertainers or celebrities.

As Judge Summers noted, “Guidelines 3 and 3a direct, [that] it is not simply the advertisement or marketing that matters; it is the larger context that matters. The entertainer enjoyed being accepted by young children. The actor celebrated the 365 days of ‘Girlhood.’ An actor, entertainer, or social media influencer, Mulvaney appeals to persons below the legal drinking age with a ‘special attractiveness.’ Mulvaney is especially attractive to young teens and girls; is often recognized as preadolescent; and caters to very young people. [Anheuser-Busch] knew all this, or the company’s leadership should have known.”
In addition, Judge Summers writes: “If a company sends a social media influencer a beer with his / her picture on the can, one can expect that the recipient will act on it. That is common sense. It is rational thinking of an adult. If [Anheuser-Busch] had sent Mulvaney a beer can while the latter’s persona was that of a 51-year-old woman, then there probably would be no violation. However, suppose that Mulvaney was an actor posing as Santa Claus, an elderly man clearly of legal drinking age. If this ‘Santa Claus’ appeared in any beer advertisement or marketing, that would certainly be a real problem for the brewer.”

The CCRB’s review was limited. The CCRB majority itself noted it was beyond the CCRB’s jurisdiction to “investigate marketing partnerships.” It is therefore imperative that Anheuser-Busch cooperate with Ranking Member Cruz’s ongoing congressional investigation, which it has so far stonewalled. As Judge Summers notes, “[Anheuser-Busch] failed to provide the reasonable documentation requested in the joint May 17th letter and June 14th formal complaint. They are reasonable requests by the complainant/s. Responses from [Anheuser-Busch] would have been elucidating.”

The CCRB failed to apply the relevant industry standard for assessing audience data. The CCRB simply did not address whether Anheuser-Busch used the “best available data” to confirm audience demographics with “reasonable certainty,” as the beer industry’s standards require.

Under the industry’s code, advertisements involving “dialogue” between a brewer and consumer must be age-gated to preclude underage individuals. Mulvaney’s April 1st Bud Light post on Instagram was not age-gated. But even though users commented, shared, and liked Mulvaney’s April 1st Bud Light post thousands of times—and produced response videos at Bud Light’s direction, incorporating a recommended hashtag—the CCRB ruled this was not “dialogue.” However, the CCRB majority then also called on the Beer Institute to define the term “dialogue” in more detail, which is essentially a tacit admission that the average person would view the interactions between Bud Light and consumers in this case as a form of dialogue.

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