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NPRM 176

Wine Institute Summary of TTB Update on Labeling & Advertising of Alcoholic Beverages

Wine Institute has compiled for members a summary of NPRM 176 Final Rule to be implemented May 4, 2020. In NPRM 176, TTB sought to comprehensively amend the regulations governing the labeling and advertising of alcohol beverages in order to improve understanding of the regulatory requirements and to make compliance less burdensome for industry members. 27 CFR Parts 4, 5, and 7 contain the labeling regulations for wine, distilled spirits, and malt beverages, respectively.

In the April 2, 2020 Federal Register (Vol. 85, No.64) announcement, TTB confirmed that it was finalizing certain changes proposed in NPRM 176 and identified other proposals that will not be adopted. TTB has finalized some regulations for distilled spirits and malt beverages but very few provisions for wine. TTB will consider issues raised by comments it received that are not included in this Final Rule and plans to address those issues in subsequent rulemaking documents.

Below are summaries of the sections of the Final Rule that apply to all three beverages (wine, malt beverages, and distilled spirits) and sections that apply specifically to wine. Additionally, a list of issues raised in NPRM 176 which are not addressed in the May 4 Final Rule is included.

SUMMARY OF SECTIONS THAT APPLY SPECIFICALLY TO WINE

  • Citrus Wine

TTB has eliminated the class “Citrus Wine” and will include any wine made from citrus in the “Fruit Wine” class. TTB came to this decision because production standards for “Citrus Wine” and “Fruit Wine” are the same, citrus is a type of fruit and the ways in which “Citrus Wine” and “Fruit Wine” may be designated are consistent. Any wines previously designated as “Citrus Wine” or “Citrus Fruit Wine” may continue to use these terms on the label instead of “Fruit Wine.”

  • Vintage Dates for Wine Imported in Bulk

Under current regulations, imported wine may only be vintage dated if it is imported in containers 5L or less or it is bottled in the United States from the original container that is vintage dated. Wine may now be vintage dated if imported in bulk containers, provided that the United States bottler has obtained appropriate documentation showing that the wine is entitled to be bottled with a vintage date.

  • *Natural Wine

 TTB has revised section 4.21 (The Standards of Identity) of the Federal Alcohol Administration Act to align it with the requirements for sweetening, amelioration and the addition of wine spirits for natural wine in the Internal Revenue Code. The revisions can be found in the revised section 4.21 in the Final Rule.

 *under the FAA Act, any grape wine containing no added grape brand or alcohol may be further designated “as natural” and not to be confused with the “natural wine” marketing definition that refers to the production of “natural” wine without pesticides, chemicals and other additives.

SUMMARY OF SECTIONS THAT APPLY TO ALL THREE COMMODITIES

  • Incorporating a Definition of “Certificate of Label Approval (COLA)”

TTB will incorporate the definition of “Certificate of Label Approval (COLA)” in “Meaning of Terms”, in existing sections 4.10, 5.11 and 7.10, for wine, distilled spirits and malt beverages, respectively. The proposed definition is largely consistent with the current definition in the existing section 13.11. In addition to “Allowable Revisions to Approved Labels” found in Section V of the COLA form, TTB has added a related statement to the end of the definition that authorizes TTB to announce additional allowable changes through public guidance providing industry more flexibility while TTB updates its lists.

  • Compliance with Federal and State Requirements, Including FDA Requirements

TTB proposed new regulatory text that specifically states that compliance with requirements in parts 4, 5 and 7 relating to labeling and bottling does not relieve industry from the responsibility of complying with applicable Federal and State requirements, including FDA requirements. The proposed language was intended to codify some of TTB’s longstanding positions on issues that are currently reflected in label and formula forms, public guidance and an MOU between FDA and TTB. Commenters generally supported TTB’s current policy,but did not understand the intent of the proposed revisions. TTB indicates that the clarification they proposed would not meet its intended purpose and has decided not to move forward with proposed amendments on this issue.

  • Alcohol Beverage Products That Do Not Meet the Definitions of a Wine, Distilled Spirits or Malt Beverage Under the FAA Act

TTB adopted regulations that will clarify which alcoholic beverage products meet the statutory definition of a wine or malt beverage under the FAA Act, and which do not. TTB will finalize and incorporate these provisions into existing regulations as sections 4.6, 4.7 for wine and 7.6 for malt beverages.

  • Exportation in Bond and Labeling Requirements

TTB is not moving forward with its proposed changes in parts 4 and 7 to clarify that products exported in bond directly from a bonded wine premises, distilled spirits plant or brewery, or customs custody are not subject to the FAA Act regulations under parts 4, 5 or 7 of the TTB regulations. This proposal was only a clarifying change to existing sections 4.80 and 7.60 and TTB will instead incorporate text from these sections (4.80 and 7.60) into part 5.1 to ensure consistency and clarity.

  • Personalized Labels

TTB will incorporate the proposed provisions so that importers and bottlers are able to make certain changes to approved labels in order to personalize labels without having to resubmit labels to TTB for approval. These provisions will be incorporated into the existing regulations as new sections 4.54, 5.57 and 7.43. In response to Wine Institute’s comment, TTB will also include a definition of “personalized label” into each of these new sections. Additionally, TTB notes that industry members may offer personalized labels by obtaining individual COLAs for each personalized label and if information to be added or changed is already covered by an allowable revision to an approved label, the industry member may make changes to the approved label without obtaining new TTB approval.

  • Country of Origin References

TTB is proceeding with its proposal to remove the substantive requirement for country of origin labeling for distilled spirits. It has been the longstanding policy of TTB that this requirement should be interpreted in a manner that is consistent with Customs and Border Protection (CBP) requirements. TTB is incorporating a cross-reference to CBP regulations into existing sections 4.35, 5.36 and 7.25 because the provisions are a clarifying change that alerts industry members of their obligation to comply with CBP requirements. TTB will simplify the proposed language to instead simply refer readers to the CBP regulations for those requirements.

  • Misleading Representations as to Commodity

Based on the feedback provided by commenters regarding the ambiguity of the proposed text, TTB will not move forward with its proposal to adopt a new prohibition on types of cross-commodity terms that TTB considered misleading. Instead, TTB will continue to rely on its current regulations in sections 4.39(a)(1), 5.42(a)(1) and 7.29(a)(1) to address specific circumstances where it finds that a representation on a label is misleading, and will not proceed with a blanket approach to cross-commodity terms that could unnecessarily restrict creativity in the use of truthful and non-misleading representations on a label.

  • Alternate Contact Information for Advertisements

TTB proposed to amend the regulations to allow alternative contact information for the permittee be shown instead of the city and state. TTB is adopting the proposed amendment to allow additional options for displaying contact information for responsible advertisers. This change will allow the advertiser to display its phone number, website or email address rather than the city and state where it is located. TTB is incorporating these amendments into the existing regulations in sections 4.62, 5.63 and 7.52.

LIST OF ISSUES OF NPRM 176 NOT ADDRESSED IN MAY 4 FINAL RULE

PART 4—LABELING OF WINE

SUBPART A—GENERAL PROVISIONS

4.14.1 Definitions.

Definition of Brix

Definition of Total Solids

4.94.9 Compliance with Federal and State Requirements.

4.10 Other Related Regulations.

4.84.8 Wine for Export.

SUBPART B–Certificates of Label Approval and Certificates of Exemptions from Label Approval

4.21 Requirement for Certificates of Label Approval (COLAs) for Wine Bottled in the United States.

4.22 Rules Regarding Certificates of Label Approval (COLAs) for Wine Bottled in the United States and § 4.25 Rules Regarding Certificates of Label Approval (COLAs) for Wine Imported in Containers

4.23 Application for exemption from label approval for wines bottled in the United States.

4.24 Certificates of label approval (COLAs) for wine imported in containers.

4.28 Formulas, samples and documentation.

 

SUBPART C –ALTERATION OF LABELS, RELABELING, AND ADDING INFORMATION TO CONTAINERS

4.41 Alteration of labels.

4.42 Authorized relabeling activities by proprietors of bonded wine premises and importers.

4.43 Relabeling activities that require separate written authorization from TTB.

4.44 Adding a label or other information to a container that identifies the wholesaler, retailer, or consumer.

SUBPART D – LABEL STANDARDS

4.52 Legibility and other requirements for mandatory information on labels.

SUBPART E – MANDATORY LABEL INFORMATION

4.62 Packaging (cartons, coverings, and cases).

4.63 Mandatory Label Information

4.65 Alcohol Content.

SUBPART F – Restricted Labeling Statements

4.88 Appellations of origin for grape wine in general.

4.90 Multicounty and multistate appellations of origin for grape wine.

4.93 Estate grown.

SUBPART G – PROHIBITED LABELING PRACTICES

4.103 Obscene or indecent depictions.

SUBPART H – Labeling Practices That Are Prohibited if They Are Misleading

4.122 Misleading statements or representations.

4.124 Disparaging statements.

4.125 Tests or analyses.

4.126 Depictions of government symbols.

4.127 Depictions simulating government stamps or relating to supervision.

4.128 Claims related to distilled spirits or malt beverages.

4.129 Health-related statements.

4.133 Claims regarding terms defined or authorized by this part.

4.134 Statements related to dates or ages.

4.135 Indications of origin.

4.136 Use of a varietal name, type designation of varietal significance, semi-generic name, or geographic distinctive designation.

SUBPART I – THE STANDARDS OF IDENTITY FOR WINE

4.143 Sparkling grape wine—class and type designation.

4.151 Statements of composition.

4.154 Cellar treatment and alteration of class or type.

4.156 Varietal (grape type) labeling as type designations.

4.174 Semi-generic designations of geographic significance.

SUBPART K – Standards of Fill and Authorized Container Sizes

4.203 Standards of fill (container sizes).

4.204 Aggregate packaging to meet standard of fill requirements.

SUBPART L – RECORDKEEPING AND SUBSTANTIATION REQUIREMENTS

4.212 Substantiation requirements.

 

Questions?

Contact Wine Institute’s legal team

legal@wineinstitute.org