The TTB has published its final rule amending the regulations for the labeling and advertising of malt beverages, wine, and distilled spirits. We’re going to take some time to go through the rule and its attendant new regulations like we did with the proposal so you can get comfortable with the new changes and be armed to reach out to your liquor lawyer to ask follow-up questions. Please note that this is not the totality of changes to come out of Notice 176. There were plenty of comments and issues raised with Notice 176 that the TTB still is reviewing and taking into account before finalizing other issues – so there will be more to come. For now the TTB is publishing the final rule relative to alcohol advertising and labeling changes raised in Notice 176 that were not met with significant criticism or that were met with support.
In this first part, we’ll cover the important malt beverage updates – issues relative to labeling and advertising malt beverages.
- Alcohol content statements other than ABV are allowed: In addition to stating the alcohol by volume on your beer, 27 CFR 7.71(b)(1) will now allow “other truthful, accurate, and specific factual representations of alcohol content, such as alcohol by weight” to “appear on the label, as long as they appear together with, and as part of, the statement of alcohol content as a percentage of alcohol by volume.” As noted in the new rule, the additional benefit is that: “This change also reflects TTB’s recognition that under current regulations, brewers may have to obtain different labels for sale in States that require different types of alcohol content statements. Under the regulations as amended, brewers will be able to use the same label in States that require alcohol content to be stated as a percentage of alcohol by weight and in other States that neither require nor prohibit alcohol by weight statements.”
- The distinctions about the term draft are abolished: Draft and Draught are dead. The old industry circular from 1965 that limited the use of the terms draft and draught for beer to beverages dispensed from a spigot or tap device or that were unpasteurized and required refrigeration will be cancelled as consumers are “not likely to confuse beer from a bottle or can with beer from a tap or keg and will not be misled by seeing the term draft on a label.” The terms will now be treated as marketing or puffery.
- Strength claims on your beer packaging are not banned anymore: The First Amendment wins out and the old prohibition on strength claims is gone. Bans on the use of words like “strong,” “full strength,” “extra strength,” “high test,” “high proof,” “pre-war strength,” “full oldtime alcoholic strength,” and other strength(y) words are removed. These “strength claims” are now allowed. Thanks in no small part to Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). As the new rule notes: “Although Coors related to labeling, not advertising, TTB believes it is appropriate to have consistent policies regarding statements of alcohol content. While such statements are now permitted, these regulatory changes should not be interpreted to limit TTB’s authority to prohibit claims relating to alcohol content that TTB considers false or misleading.”
Those issues summarized above and some of the other matters that we will cover in additional posts about these changes are reflected in these specific changes to 27 CFR part 7 that the Rule details which are:
PART 7—LABELING AND ADVERTISING OF MALT BEVERAGES
25.The authority citation for part 7 continues to read as follows:
Authority: 27 U.S.C. 205.
Subpart A—Scope
26.Add § 7.6 to read as follows:
- 7.67.6 Brewery products not covered by this part.
Certain fermented products that are regulated as “beer” under the Internal Revenue Code (IRC) do not fall within the definition of a “malt beverage” under the FAA Act and thus are not subject to this part. They may, however, also be subject to other labeling requirements. See 27 CFR parts 25 and 27 for labeling requirements applicable to “beer” as defined under the IRC. See 27 CFR part 16 for health warning statement requirements applicable to “alcoholic beverages” as defined in the Alcoholic Beverage Labeling Act.
(a) Saké and similar products. Saké and similar products (including products that fall within the definition of “beer” under parts 25 and 27 of this chapter) that fall within the definition of a “wine” under the FAA Act are covered by the labeling regulations for wine in 27 CFR part 4.
(b) Other beers not made with both malted barley and hops. The regulations in this part do not cover beer products that are not made with both malted barley and hops, or their parts or their products, or that do not fall within the definition of a “malt beverage” under § 7.10 for any other reason. Bottlers and importers of alcohol beverages that do not fall within the definition of malt beverages, wine, or distilled spirits under the FAA Act should refer to the applicable labeling regulations for foods issued by the U.S. Food and Drug Administration. See 21 CFR part 101.
Subpart B—Definitions
27.Amend § 7.10 by adding a definition of “Certificate of label approval (COLA)” in alphabetical order to read as follows:
- 7.107.10Meaning of terms.
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Certificate of label approval (COLA). A certificate issued on form TTB F 5100.31 that authorizes the bottling of wine, distilled spirits, or malt beverages, or the removal of bottled wine, distilled spirits, or malt beverages from customs custody for introduction into commerce, as long as the product bears labels identical to the labels appearing on the face of the certificate, or labels with changes authorized by TTB on the certificate or otherwise (such as through the issuance of public guidance available on the TTB website at http://www.ttb.gov).
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Subpart C—Labeling Requirements for Malt Beverages
28.Amend § 7.25 by redesignating paragraph (c) as paragraph (d) and adding new paragraph (c) to read as follows:
- 7.257.25Name and address.
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(c) Cross reference—country of origin statement. For U.S. Customs and Border Protection (CBP) rules regarding country of origin marking requirements, see the CBP regulations at 19 CFR parts 102 and 134.
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- 7.297.29[Amended]
29.Amend § 7.29 by removing and reserving paragraphs (f) and (g).
Subpart E—Requirements for Approval of Labels of Malt Beverages Domestically Bottled or Packed
30.Add § 7.43 to read as follows:
- 7.437.43Personalized labels.
(a) General. Applicants for label approval may obtain permission from TTB to make certain changes in order to personalize labels without having to resubmit labels for TTB approval. A personalized label is an alcohol beverage label that meets the minimum mandatory label requirements and is customized for customers. Personalized labels may contain a personal message, picture, or other artwork that is specific to the consumer who is purchasing the product. For example, a brewer may offer individual or corporate customers labels that commemorate an event such as a wedding or grand opening.
(b) Application. Any person who intends to offer personalized labels must submit a template for the personalized label as part of the application for label approval required under §§ 7.31 or 7.41 of this part, and must note on the application a description of the specific personalized information that may change.
(c) Approval of personalized label. If the application complies with the regulations, TTB will issue a certificate of label approval (COLA) with a qualification allowing the personalization of labels. The qualification will allow the certificate holder to add or change items on the personalized label such as salutations, names, graphics, artwork, congratulatory dates and names, or event dates without applying for a new COLA. All of these items on personalized labels must comply with the regulations of this part.
(d) Changes not allowed to personalized labels. Approval of an application to personalize labels does not authorize the addition of any information that discusses either the alcohol beverage or characteristics of the alcohol beverage or that is inconsistent with or in violation of the provisions of this part or any other applicable provision of law or regulations.
Subpart F—Advertising of Malt Beverages
31.Amend § 7.52 by revising paragraph (a) to read as follows:
7.527.52 Mandatory statements.
(a) Responsible advertiser. The advertisement must display the responsible advertiser’s name, city, and State or the name and other contact information (such as, telephone number, website, or email address) where the responsible advertiser may be contacted.
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- 7.547.54[Amended]
32.Amend § 7.54 by removing and reserving paragraph (c).
33.Revise the heading to subpart H to read as follows:
Subpart H—Alcoholic Content Statements
34.Amend § 7.71 by revising paragraph (b)(1) to read as follows:
- 7.717.71Alcoholic content.
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(b) * * *
(1) Statement of alcoholic content shall be expressed in percent alcohol by volume, and not by proof, by a range, or by maximums or minimums, unless required by State law. Other truthful, accurate, and specific factual representations of alcohol content, such as alcohol by weight, may be made, as long as they appear together with, and as part of, the statement of alcohol content as a percentage of alcohol by volume.
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