It was one year ago, on February 11, 2023, that Dylan Mulvaney, the transgender-identifying social media influencer, posted a video of himself drinking Bud Light in a bathtub — paid promotion that permanently altered not only Bud Light’s reputation, but now also the ad standards for the entire beer industry.
While Bud Light dealt with the public outcry and a nationwide boycott over its partnership with Mulvaney, it fought a less high-profile legal battle over whether the promotion of beer by Mulvaney — who often presents on social media as an entertainer for kids — was compliant with industry standards that ban marketing alcohol to minors.
U.S. Senators Ted Cruz (R-TX) and Marsha Blackburn (R-TN), both members of the Commerce Committee, wrote a letter on May 17, 2023, that sparked a formal review by the beer industry’s self-regulating body, the Beer Institute, into whether Bud Light was targeting minors through its ads with Mulvaney.
Mulvaney posted just twice as a Bud Light partner, first on February 11 in the bathtub timed with last year’s Super Bowl and then again on April 1 for March Madness, with the latter post generating the outrage that cost the company billions of dollars. The company first reviewed the possibility of hiring Mulvaney in December 2022 and went on to pay him a reported $185,000 for the two posts.
The senators in their letter state that Mulvaney was brought on as part of Bud Light’s strategy to “attract young drinkers” and pointed to his several posts aimed at children, including one in March, right in the middle of his two posts for Bud Light, in which he posed as a 6-year-old children’s book character named Eloise.
The charge was reviewed by the Beer Institute’s “Code Compliance Review Board,” which in a July decision found that Bud Light did not violate its Advertising and Marketing Code. But just two months later that code was quietly revised — the Advertising and Marketing Code that beer companies are required to adhere to now includes new language on social media influencers that would appear to forbid any brewer from working with Mulvaney.
The guidelines also appear to mandate that Bud Light go back and reassess the Mulvaney posts based on the new standards.
The updated standards state that a brewer must conduct “after-the-fact audits” at least twice a year of all its influencer placements. “If a Brewer learns that an advertising placement did not meet the Code’s audience demographic standard,” the Beer Institute states, recommended steps include having the post removed.
The standards at the time of the initial review made no mention of influencers, and Bud Light’s parent company, Anheuser-Busch, used that to say it wasn’t responsible for reviewing influencer posts, and didn’t with Mulvaney. The company told the review board that influencer campaigns are “unique” because the content is “not controlled by the brewer,” but rather the “influencers develop their own content and post it on their own page.”
That’s no longer an acceptable process. The new standards, which were announced in a September 28, 2023, press release but received no media attention, say that social media influencer content needs to be held to the same standard as other ads.
The standards were updated just weeks after Cruz urged action in an August 15 letter in which he bemoaned the lack of standards for social media posts. “It is concerning, for example, that brewers do not prescreen branded content by social media influencers,” Cruz wrote, noting Bud Light’s initial defense that influencer posts were “unique.”
The guidelines state that social media posts can only be placed where at least 73.8% of the audience is of legal drinking age — the same standard as for traditional advertisements — and that “age-gating measures” must be used if available.
Not only do independent analyses of Mulvaney’s audience call into question whether his audience is sufficiently composed of drinking-aged adults, but there is no indication that Mulvaney is using Instagram’s age restriction tools. The Daily Wire signed up for an Instagram account stating that it was underage and was able to access his Bud Light promotion.
While Anheuser-Busch stated in its initial defense of the Mulvaney posts that it conducted an “audience composition study” and found that roughly 80% of his audience was 21 or older, its review appears to be insufficient. The company conducted a single analysis when it first engaged with Mulvaney in December 2022 and used it to justify both posts in the coming months.
Beer companies are required, however, to continually analyze the audience of their influencers. If Bud Light had, it would have likely learned that Mulvaney wasn’t an acceptable option.
An independent analysis conducted on the publication date of this story by The Daily Wire using Modash, a leading influencer analysis products, found that over half of Mulvaney’s followers are 24 or under — 7.95% are aged 13-17, and 45.32% are aged 18-24. It is impossible to know the exact composition of his followers based on Instagram’s data because the cutoff date for alcohol, 21 years old, is right in the middle of the 18-24 segment. But if just half of the 18-24 portion were under 21, then Mulvaney would fall below the acceptable threshold.
Cruz, in his August letter that appears to have prompted the updated standards, cast serious doubt about assumptions made by Bud Light in its audience review. One complaint stated by the Texas senator is that Bud Light guessed the proportion of 18-24-year-olds that were actually over 21 based on an assumption that users are evenly distributed by age — it only counts 42% of that group as underage — even though there is no evidence to suggest that’s the case.
It’s likely the case that there are far more young people on Instagram than its data suggests. The social media platform relies on the honesty of users to determine their age, with little to no age verification tools. Surveys show that minors regularly lie about their age to obtain social media profiles. It is therefore likely that the studies overstate the number of users who are adults.
It is unclear whether Anheuser-Busch has conducted a single analysis of Mulvaney’s audience since its initial review before the posts, even though the new standards require it to.
Anheuser-Busch did not respond to a request for comment on the Mulvaney posts, and whether it has reviewed them since the updated standards were released. Mulvaney also did not respond to inquiries.
The Beer Institute declined to comment on whether any action has been taken regarding Mulvaney’s posts since the standards were updated, and whether any action is required.
“The Code Compliance Review Board, an independent review board convened by the Beer Institute, has already carefully assessed the posts and determined that there was no violation of the Beer Institute Advertising and Marketing Code,” a Beer Institute spokesman told The Daily Wire, a statement that disregards the fact that the Advertising and Marketing Code was amended after the review.
Cruz warned the Beer Institute in his August letter that a failure to take his concerns seriously would force him to legislate away the industry’s self-governing situation.
“There are currently no federal laws against advertising alcohol to minors, in part because of the beer industry’s professed commitment to self-regulation,” Cruz wrote. “As Ranking Member on the Commerce Committee, it is my duty to ensure that the Beer Institute’s private regulatory regime is working; if it is not, then our Committee may be forced to consider legislating to protect consumers, including impressionable children.”
Cruz made clear in his latest letter on the topic that the Beer Institute’s absolvement of Bud Light doesn’t mean his inquiries will end. The industry trade group’s board of directors, after all, is currently chaired by Brendan Whitworth, the CEO of Anheuser-Busch.
Bud Light has continued to grapple with its reputation in the year since affiliating its brand with the transgender influencer. It is reportedly using this year’s Super Bowl as an opportunity for a “brand revival.”
Both of Mulvaney’s posts tagged with “#budlightpartner” remain unaltered on Instagram.
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