What proposals are made in the TTB’s new rulemaking on labeling and advertising of wine, distilled spirits and malt beverages? (New TTB advertising and labeling rules Part 2)

As promised, we’re going to be diligently making our way through the TTB’s “Notice No. 176” – the “Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages.”

As a general overview, the scope of the new rulemaking involves several efforts to “improve understanding of the regulatory requirements and to make compliance easier and less burdensome.”

Notably, the TTB promises that the new rules/updates:

• will incorporate changes in labeling standards that have come about through statutory changes (like labeling wines with semi-generic designations) and international agreement (think tequila, and Canadian Whisky under USMCA);
• will allow greater flexibility for wine in the use of certain appellations of origin and multiple varietal designations;
• grant producers greater flexibility with regard to the placement of mandatory information on labels;
• will reflect contemporary caselaw with regard to the protection of commercial speech under the First Amendment such as codifying long-standing interpretations such as the policy that the prohibition on disparaging statements on labels and advertisements does not prohibit truthful and accurate comparisons with a competitor’s product;
• will update the content regulations for wine and malt beverages for the first time since the Supreme Court’s decision in Rubin vs. Coors Brewing Company – thereby finalising the interim regulations that have been in place since 1993 based on that case – modernizing the regulations on strength claims to remove outdated language such as the ban on the use of the term “pre-war strength” which refers to the period before World War I;
• will incorporate certain proposals previously aired for comment by the TTB including proposals on the use of “estate grown” on wine labels and the use of aggregate packaging to satisfy standards of fill for distilled spirits and wine containers;
• will proposed rules intended to protect consumers by providing more specific labeling and packaging rules, for example existing regulations require mandatory information to appear on opaque packaging of distilled spirits and wine because consumers are unable to see the label on the container without removing the container from the packaging – TTB is proposing to extend this requirement to malt beverages;
• will also require mandatory information to appear on any “closed packaging” of wine, distilled spirits, or malt beverages and amending the definitions of the federal regulations to define “closed packaging” to include packaging where the mandatory information on the label of the container is not visible to the consumer because the container cannot be readily removed from the packaging – packaging is considered closed if the consumer must open, rip, untie, unzip, or otherwise manipulate the package to remove the container in order to view any of the mandatory information;
• will attempt to alleviate consumer confusion by keeping terms that apply to one commodity off labels of a different commodity. As an example the TTB says many wine and malt beverage labels include distilled spirits terms and quite a few malt beverage labels include wine terms, and that on account of this the TTB is proposing a specific regulatory provision to prohibit the use of such terms when they might mislead consumers as to the identity of the product, while allowing the non-misleading use of certain terms such as referencing aging malt beverages in barrels previously used for the storage of distilled spirits and wine. Don’t worry you’ll have a chance to comment on whether these proposals will protect consumers and whether they will require any significant labeling changes by industry members;
• will not touch upon labeling requirements such as serving facts or nutrient content claims or gluten content statements or allergen labeling requirements or standards of fill requirements which of all previously been addressed in rulemaking and may soon be addressed in new rules.
• Lastly this rulemaking proposes to consolidate the alcoholic beverage advertising regulations into a new part 27 CFR part 14 Advertising of Wine, Distilled Spirits, and Malt Beverages.

Over the next few weeks, we’ll be going through each of the proposed changes in greater detail with an eye to the specific amendments/additions.