Are you ready for the TTB’s new alcoholic beverage labeling and advertising regs that would change beer/malt beverages allowable alcohol content statement tolerances, and allow for different contract brewers to list all locations a beer is made? (New TTB advertising and labeling rules Part 12)

Yesterday, in Part 11 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 the beer/malt beverages definitions, and COLA and labeling standards.

In Part 12 we continue our review of beer/malt beverages and look at the changes to labeling practices, mandatory label information, malt beverage classes and some other specific regulatory changes and definitions.

The proposed updated regulations will change beer/malt beverages labeling practices and other regulations in the following ways:

• Believing consumers are used to looking at beer back and neck labels to find mandatory labeling information the TTB is proposing a new section 7.63 to amend the current malt beverage regulations to allow mandatory information to appear on any label on the malt beverage container rather than requiring it be on a single brand label.
• A proposed section 7.65 will incorporate current standards and rulings and rectify procedures in line with allowing alcohol content statements thanks to Rubin v. Coors Brewing. This new section will include a list of the acceptable ways to present an alcohol content statement on a label. Specifically this section will provide statements other than a percentage of alcohol by volume, such as statements of alcohol by weight, may appear on the label if they are truthful, accurate, and specific factual representations of alcohol content, and if they appeared together with, and as part of, the statement of alcohol content as a percentage of alcohol by volume.
• Brewers will be allowed to express alcohol content on packaging as both alcohol by volume and alcohol by weight statement so that  packaging can be used in states that may require one or the other without needing to be changed.
• The current ABV tolerance of 0.3 percentage points above or below the stated alcohol content will be changed and the allowable tolerance will be expanded to a full percentage point above or below the labeled alcohol content. In noting this change the TTB claims that small brewers have avoided putting an optional alcohol content statement on malt beverage labels because they have difficulty maintaining a precise alcohol content from batch to batch. In allowing the one percentage difference the TTB believes that increasing the tolerance level will encourage more brewers to include this important information on labels. NOTE:  This is a complete change in policy from the rationale prior to Rubin v. Coors under which the TTB felt that stating alcohol content would create strength wars. It turns out that their “just so” or “assumptive” reasoning about what would happen if alcohol content was stated was completely false and now they admit that it was completely false and that this information is important and guides consumers. This should be strong caution to anyone who thinks that a regulator’s justification which isn’t supported by scientific testing and empirical observation should just be accepted. Always be ready to challenge assumed outcomes that are not based on scientific testing – as many alcohol regulations, especially those regarding what will promote “temperance” are.
• New standards for the name and place where bottled on labels of domestically bottled malt beverages differ from the current regs in some key ways. For starters the new regs reflect the agency policy that the all the brewer’s locations may be provided on a label under certain conditions. Second the new regs help contract breweries by providing more guidance on what is required when malt beverages are brewed or bottled for another person. For example the proposed regulations provide that if the same brand of malt beverages is brewed and bottled by two breweries that are not of the same ownership the label for each brewery may set forth both locations were bottling takes place as long as the label uses the actual locations and not the principal place of business and as long as the nature of the agreement is clearly set forth. Third the proposed regulations provide that the place of bottling and the address of the principal place of business of a brewer must be consistent with the city and state of the address reflected on the brewer’s notice.
• Metric content statements will be allowed on bottles in addition to U.S. standard measures, but not in lieu of them.
• Codifying a policy from 1965 the new regulations will set out standards for the use of the word “draft.” They’ll allow the word draft to describe beer coming from a container of a gallon or more that dispenses through a tap, spigot, faucet, or similar device. The new regs will also allow that bottles and cans may use the word draft if they are unpasteurized and require refrigeration for preservation or if the unpasteurized beverage has been sterile filtered and aseptically filled. Finally the new ruling will provide that malt beverages packaged in customary bottles or cans that have been pasteurized may be described as “draft brewed,” “draft beer flavor,” “old-time on tap taste,” or with another similar phrase only if the word pasteurized appears on a label.
• The new regs continue to keep the word “bonded” from being used on malt beverages but the TTB is soliciting comments as to whether or not that prohibition should be continued. The TTB is also updating the prohibited language regarding strength claims such as using words like “strong,” “full strength,” “extra strength,” “high test,” “high-proof,” “pre-war strength,” “full old-time alcohol strength” and similar words that could be considered statements of alcohol content on the labels of malt beverages. Although it appears “pre-war strength” and “full old-time alcohol strength” may be removed from the specific prohibitions.
• While standards of identity will not be created there are some new sections that will codify existing practices such as designations for certain classes, codifying the TTB Ruling 2014-4 that the Brewers Association fought for – to allow for an expanded list of ingredients that would not require formal approval. Additionally there will be a standard for certain geographical names appearing as designations such as Vienna Beer or Bavarian Stout, and there will be a reg setting forth certain class designations such as ice beer, wheat beer, rye beer, and barley wine ale consistent with existing TTB policy.