Are you ready for the TTB’s new alcoholic beverage labeling and advertising regs that would remove the blanket prohibition on labels bearing the U.S. Flag and change other current restrictions? (New TTB advertising and labeling rules Part 5)

Yesterday, in Part 4 of our series on the TTB’s “Notice No. 176” – the “Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages” we covered proposed changes to labeling practices.

In Part 5 we’re covering some changes to alcoholic beverage labeling standards that involve labeling content restrictions.

Labeling content under the revised rules regarding wine, spirits, and beer will change in the following ways:

1. The TTB’s alcoholic beverage labeling regulation section that was previously entitled “Prohibited Practices” will be divided into three subparts: Subpart F – practices that may be used under certain conditions, Subpart G – practices that are always prohibited, and Subpart H – practices that are prohibited only if they are used in a misleading manner on labels.
2. Under these new restrictive sections the term “label” will include all labels on alcoholic beverage containers on which mandatory information may appear as set forth in the new sections 4.61, 5.61, and 7.61 as well as any other label on the container. The term “packaging” will be defined as any carton, case, carrier, individual covering or other packaging of such containers used for sale at retail not including shipping cartons or cases that are not intended to accompany the container to the consumer. The term “statement or representation” includes any statement, design, device, or representation, and includes pictorial or graphic designs or representations as well as written ones, and includes both explicit and implicit statements and representations.
3. The proposed regulations will add new sections 4.85, 5.85, and 7.85 of the use of statements relating to environmental and sustainability practices. These new rules will allow statements related to environmental or sustainable agricultural practices, social justice principles, and other similar statements to appear on labels as long as the statements are truthful, specific and not misleading. In addition to these standards statements or logos indicating environmental, sustainable agricultural, or social justice certification, such as “fair trade” or “salmon-safe” may appear on the labels of products that are actually certified by the appropriate organization.
4. The section that details prohibited practices will include false statements and obscene or indecent depictions. This section restates and reorganizes prohibitions currently found in the TTB regulations. (As such, it is ripe for a First Amendment challenge as we’ve pointed out in previous posts.)Other provisions carried over such as a prohibition on misleading statements regarding age, origin, identity, or other characteristics, regardless of their truth or falsity.
5. “Altar wine” will no longer be restricted to a term used on products sold only to religious organizations.
6. In an old alcoholic beverage labeling and advertising prohibition that was surely tested (although likely not violated) by the recent corn syrup commercials run by Bud Light during the Super Bowl, the prohibition of disparaging statements about competitors products will be codified in their own special sections 4.124, 5.124 and 7.124. This again codifies a long-standing TTB and ATF policy. An actual example of a statement that would be considered disparaging in the proposed rules is an advertisement saying ”We do not add arsenic to our product” which the TTB considers truthful but also disparaging and prohibited by the rules because it falsely implies that other producers do add arsenic to their products.
7. The old regulation prohibiting use of the American flag or armed forces symbols will be amended to allow for use of the flag absent implications that the alcoholic beverage is sponsored or endorsed by the government.
8. The general prohibition on cross-commodity term usage will be retained, and terms generally associated with one commodity will not be allowed on others. And statements regarding Teresa manufacturing practices will still be allowed even though they may impugn this rule. For example a statement about beer such as “aged in whiskey barrels” is allowed but a statement such as “bourbon flavored beer” is not.
9. New sections 4.130, 5.130, and 7.130 will be added to restate the current prohibition on the use of the name of a living person or existing private or public organization which misleads the consumer to believe that the product has been endorsed, made, or used by, or produced for, or under the supervision of, or in accordance with the specifications of, such individual organization. But the new rule will go on to also clarify the fact that actual endorsements are permitted and the TTB may request documentation supporting the claim of endorsement at the time the application for label approval is submitted or at a later time.