Virginia’s happy end to unlawful happy hour restrictions
Think of a few of the most memorable restaurant marketing promotions of recent history: the Five Dollar Footlong, the Dollar Menu, the 4 for $4 Meal. What do they have in common? Besides being short and catchy, each slogan lets customers know the price they can expect to pay. For that reason, these ads immediately succeeded in attracting customers eager for a good deal.
Yet until recently, Virginia muzzled its bars and restaurants to prevent this type of effective advertising. Although happy hour alcohol discounts are entirely legal, advertising the price of those discounts was forbidden. So if a restaurant offered a Four Dollar Frosé for happy hour, it was a violation of Virginia law to actually use that phrase in advertising. In fact, it was a violation to use any slogan to advertise happy hour other than “happy hour” or “drink specials.” Even an innocuous catchphrase such as “Winedown Wednesdays” would have run afoul of the law.
Worse, restaurateurs lived in uncertainty over just how far this prohibition extended. The statutes and regulations concerning happy hour had been written over 30 years ago, before the advent of web advertising. For that reason, its definitions were hard to apply to modern questions: Is a post on Facebook or Twitter an advertisement? Business owners weren’t sure, and in that situation the natural reaction is to take as few risks as possible. The result was stifled expression, hampered competition and uninformed consumers.