Labeling and Advertising of Wines, Distilled Spirits and Malt Beverages, 41860-41884 [E7-14774]

Agencies

• Alcohol and Tobacco Tax and Trade Bureau
• DEPARTMENT OF THE TREASURY

[Federal Register Volume 72, Number 146 (Tuesday, July 31, 2007)]
[Proposed Rules]
[Pages 41860-41884]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14774]



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Part III





Department of the Treasury





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Alcohol and Tobacco Tax and Trade Bureau



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27 CFR Parts 4, 5, 7, and 24



Labeling and Advertising of Wines, Distilled Spirits and Malt 
Beverages; Proposed Rule

Federal Register / Vol. 72, No. 146 / Tuesday, July 31, 2007 / 
Proposed Rules

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DEPARTMENT OF THE TREASURY

Alcohol and Tobacco Tax and Trade Bureau

27 CFR Parts 4, 5, 7, and 24

[Notice No. 73; Ref: Notice No. 41]
RIN 1513-AB07


Labeling and Advertising of Wines, Distilled Spirits and Malt 
Beverages

AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to 
amend its regulations to require a statement of alcohol content, 
expressed as a percentage of alcohol by volume, on all alcohol beverage 
products. This statement may appear on any label affixed to the 
container. TTB also proposes to require a Serving Facts panel on 
alcohol beverage labels, which would include a statement of calories, 
carbohydrates, fat, and protein. Industry members may also choose to 
disclose on the Serving Facts panel the number of U.S. fluid ounces of 
pure alcohol (ethyl alcohol) per serving as part of a statement that 
includes alcohol content expressed as a percentage of alcohol by 
volume. The proposed regulations would also specify new reference 
serving sizes for wine, distilled spirits, and malt beverages based on 
the amount of beverage customarily consumed as a single serving. 
However, TTB is not defining a standard drink in this document. TTB 
proposes to make these new requirements mandatory three years after the 
date of publication of the final rule in the Federal Register. The 
agency proposes these amendments to ensure that alcohol beverage labels 
provide consumers with adequate information about the product.

DATES: Comments must be received on or before October 29, 2007.

ADDRESSES: You may send comments on this notice to one of the following 
addresses:
     https://www.regulations.gov (Federal e-rulemaking portal; 
follow the instructions for submitting comments); or
     Director, Regulations and Rulings Division, Alcohol and 
Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-
4412.
    See the Public Participation section of this notice for specific 
instructions and requirements for submitting comments, and for 
information on how to request a public hearing.
    You may view copies of this notice and any comments we receive 
about this proposal at https://www.regulations.gov. A direct link to the 
appropriate Regulations.gov docket is also available on the TTB Web 
site at https://www.ttb.gov/regulations_laws/all_rulemaking.shtml. In 
addition, you also may view copies of this notice and any comments we 
receive about this proposal by appointment at the TTB Information 
Resource Center, 1310 G Street, NW., Washington, DC 20220. To make an 
appointment, telephone (202) 927-2400.

FOR FURTHER INFORMATION CONTACT: Lisa M. Gesser, Regulations and 
Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 
128, Morganza, MD 20660; telephone (301) 290-1460; or Joanne C. Brady, 
Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade 
Bureau, P.O. Box 45797, Philadelphia, PA 19149; telephone (215) 333-
7050.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) and its 
predecessor agencies have considered the issue of requiring calorie and 
nutrient information on alcohol beverage labels in the past. As a 
result of a rulemaking initiative in 1993, TTB's immediate predecessor 
agency, the Bureau of Alcohol, Tobacco and Firearms (ATF), concluded 
that, at that time, there was no significant consumer interest in 
having nutrition information on alcohol beverage labels. Ultimately, 
ATF did not implement rules on this issue. For a detailed description 
of the rulemaking history concerning nutrition labeling on alcohol 
beverages see TTB Notice No. 41, 70 FR 22274 (April 29, 2005).
    The issue of requiring the labeling of alcohol beverage products 
with calorie and nutrient information was not raised again until 2003, 
when TTB received a petition requesting rulemaking action to require an 
``Alcohol Facts'' panel and ingredient labeling. Shortly thereafter, 
TTB was contacted by an industry member requesting approval to label 
its products with nutrition and other information on a ``Serving 
Facts'' panel. These panels, as well as TTB's authority to regulate 
alcohol beverage labels and advertisements, are discussed in detail 
below.

II. Petition for ``Alcohol Facts'' Label and Ingredient Labeling

    On December 16, 2003, the Center for Science in the Public Interest 
(CSPI), the National Consumers League (NCL), 67 other organizations, 
and eight individuals, including four deans of schools of public 
health, petitioned TTB to change the alcohol beverage labeling 
regulations. Hereinafter, we refer to this petition as ``the 
petition.'' After receipt of the petition, additional individuals wrote 
to TTB requesting the addition of their names to the petition. The 
petition asked TTB to require that labels of all alcohol beverages 
regulated by TTB include the following information in a standardized 
format:
     The beverage's alcohol content expressed as a percentage 
of volume;
     A standard serving size;
     The amount of alcohol (in fluid ounces) contained within 
each standard serving;
     The number of calories per standard serving;
     The ingredients (including additives) from which the 
beverage is made;
     The number of standard drinks per container; and
     The current definitions of moderate drinking for men and 
women published in the ``Dietary Guidelines for Americans,'' which is 
issued jointly by the United States Department of Health and Human 
Services and the United States Department of Agriculture (USDA).
    The petitioners proposed that all alcohol beverage containers bear 
this information on an ``Alcohol Facts'' panel. The petitioners 
provided the following example for a 750 milliliter bottle of wine:

[[Page 41861]]

[GRAPHIC] [TIFF OMITTED] TP31JY07.004

    The petition asked that the words ``Alcohol Facts'' be immediately 
followed by a declaration of the number of standard drinks (servings) 
per container. The petitioners asked that, consistent with the 
``Dietary Guidelines for Americans,'' (https://www.health.gov/
DietaryGuidelines) a serving should be defined as 12 ounces of beer, 5 
ounces of wine, and 1.5 ounces of 80-proof distilled spirits. The 
petitioners further recommended that for alcohol beverages not fitting 
into one of those standard categories, a serving should be defined as 
an amount of fluid containing approximately 0.5 ounces of ethyl 
alcohol. The petitioners recommended that a consistent graphic symbol 
(for example, a beer mug, wine glass, or shot glass) should appear 
first, followed by the number of drinks in the container (for example, 
``Contains 5 Servings''). The petition proposed requiring this 
information on labels of all malt beverages, wines, and distilled 
spirits products regulated by TTB that contain more than one-half of 
one percent alcohol by volume. The graphics and type size for the 
Alcohol Facts label should follow the Nutrition Labeling Education Act 
standards as set out in the Food and Drug Administration (FDA) 
regulations at 21 CFR 101.9(d), the petitioners suggested. Further, the 
petitioners stated that ingredient information should appear on the 
label immediately below, but segregated from, the ``Alcohol Facts'' 
box.
    The petitioners suggested that current regulatory requirements 
force consumers to guess about the calorie content of alcohol beverages 
and the alcohol content of malt beverages. The petitioners included a 
summary of the results of a census-balanced, nationally representative 
telephone study conducted in September of 2003, among 600 Americans, 
ages 18 and older. The study was conducted by the Global Strategy 
Group, an independent polling and marketing research firm. The results 
were that 91 percent of respondents supported requiring ingredient 
labeling on alcohol beverages; 94 percent supported requiring alcohol 
content on alcohol beverage labels; 89 percent supported the mandatory 
labeling of calorie content for alcohol beverages; and 84 percent 
supported the labeling of serving size information.

III. Requests for Voluntary Serving Facts Labeling

    Following receipt of the petition, TTB was contacted by an alcohol 
beverage industry member that wished to label its products with 
nutrient and other information on a ``Serving Facts'' panel. 
Subsequently, TTB received other requests from industry members to 
label products with similar information.
    In July and then again in September of 2004, TTB posted on its Web 
site, https://www.ttb.gov, a summary of specifications for a planned 
ruling concerning the manner in which alcohol beverage labels and 
advertisements might permissibly reflect information about a single 
serving in a Serving Facts panel, consistent with the statutory and 
regulatory standards administered by TTB. The Bureau sought input from 
interested parties, including the alcohol beverage industry, consumers, 
and consumer interest groups, about what information should be 
permitted on such a panel and in what format the Serving Facts panel 
should appear.
    In the first posting, TTB solicited comments on a variety of 
options. The Bureau informally asked for comments on an optional 
Serving Facts panel that would include the serving size in fluid ounces 
based on what was previously specified in TTB Ruling 2004-1 (1.5 fluid 
ounces for distilled spirits, 5 fluid ounces for wines, and 12 fluid 
ounces for malt beverages, regardless of alcohol content). The panel 
would also include the number of servings per container, and for each 
serving the following information:
     Fluid ounces of ethyl alcohol (to the nearest tenth of an 
ounce);
     Calories;
     Fat (in grams);
     Carbohydrates (in grams); and
     Protein (in grams).
    The Bureau also informally solicited comments on whether the term 
``standard drink'' should be defined and whether it and the number of 
standard drinks in a serving should be permitted on alcohol beverage 
labels and in advertisements. Finally, we solicited comments on the 
optional use of three icons similar to the ones at the bottom of the 
label presented below:

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[GRAPHIC] [TIFF OMITTED] TP31JY07.005

    In the second posting on our Web site, TTB informally solicited 
comments on an alternative label approach that omitted the icons and 
standard drink references. An example of this approach is as follows:
[GRAPHIC] [TIFF OMITTED] TP31JY07.006

    As a result of the two Web postings, TTB received several comments 
concerning a voluntary Serving Facts panel. The comments reflected 
strong and varying opinions. A significant proportion of those who 
commented felt that the issue should be addressed in public notice and 
comment rulemaking rather than in a TTB ruling. Furthermore, many 
commenters believed that certain elements of the Serving Facts panel 
would tend to confuse or mislead consumers about the product. In 
response to the issues raised by the commenters, on December 28, 2004, 
TTB issued a press release indicating that we would address these 
issues in an advance notice of proposed rulemaking.

IV. Notice No. 41

    On April 29, 2005, TTB published in the Federal Register (70 FR 
22274) Notice No. 41, an advance notice of proposed rulemaking entitled 
``Labeling and Advertising of Wines, Distilled Spirits, and Malt 
Beverages; Request for Public Comment.'' Notice No. 41 sought public 
comment on a wide range of alcohol beverage labeling and advertising 
issues to help the agency determine what regulatory changes in alcohol 
beverage labeling and advertising requirements, if any, TTB should 
propose in future rulemaking documents. Specifically, TTB sought 
comments on the petitioned ``Alcohol Facts'' panel and ingredient 
labeling, the ``Serving Facts'' panel presented in TTB's informal 
request for comments, and each panel's elements. Additionally, TTB 
requested comments on allergen labeling and the labeling of calorie and 
carbohydrate claims.
    In the preamble to Notice No. 41, TTB announced its interim policy 
on the use

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of Serving Facts panels on labels, as follows:

    Pending the completion of rulemaking proceedings, TTB does not 
intend to issue certificates of label approval bearing the optional 
``Serving Facts'' panel. We believe it is important to have the 
benefit of public comments on these issues before making a decision 
as to whether the new elements in the panel might tend to mislead 
consumers.

    During the 60-day comment period, we received several requests from 
alcohol beverage industry representatives and organizations to extend 
the comment period for an additional 60 to 90 days beyond the original 
June 28, 2005, closing date. In support of the extension requests, 
industry members noted that some of the questions posed in the notice 
were broad and far reaching from a policy standpoint, while others were 
very technical, requiring research and coordination within the affected 
industries. In response to those requests, we extended the comment 
period for an additional 90 days. See Notice No. 48, 70 FR 36359, June 
23, 2005. The extended comment period for the ANRPM closed on September 
26, 2005.

V. TTB's Authority To Prescribe Alcohol Beverage Labeling and 
Advertising Regulations

A. Internal Revenue Code

    The Internal Revenue Code of 1986 (IRC) provides the Secretary with 
authority to issue regulations regarding the marking and labeling of 
containers of distilled spirits, wines, and beers. See 26 U.S.C. 5301, 
5368, and 5412. This authority is based on the Secretary's 
responsibility to protect the revenue and to collect the taxes imposed 
on alcohol beverages by Chapter 51 of the IRC.

B. Federal Alcohol Administration Act

    Sections 105(e) and 105(f) of the Federal Alcohol Administration 
Act (FAA Act), codified in the United States Code at 27 U.S.C. 205(e) 
and 205(f), set forth standards for regulation of the labeling and 
advertising of wine (containing at least 7 percent alcohol by volume), 
distilled spirits, and malt beverages, generally referred to as alcohol 
beverage products throughout this notice. These sections give the 
Secretary of the Treasury the authority to issue regulations to prevent 
deception of the consumer, to provide the consumer with ``adequate 
information'' as to the identity and quality of the product, to 
prohibit false or misleading statements, and to provide information as 
to the alcohol content of the product.
    The statutory requirements with respect to alcohol content differ 
among the three alcohol beverage categories. The FAA Act requires 
alcohol content statements on labels of distilled spirits products. The 
Act also requires alcohol content statements for wines with an alcohol 
content of over 14 percent alcohol by volume, leaving such statements 
optional for wines with an alcohol content below that level. The Act, 
when originally enacted, prohibited such statements on malt beverage 
labels, unless required by State law, but that prohibition was 
overturned in 1995 by the U.S. Supreme Court in Rubin v. Coors Brewing 
Company, 514 U.S. 476 (1995).
    The labeling and advertising provisions of the FAA Act also give 
the Secretary the authority to prohibit, irrespective of falsity, 
statements relating to age, manufacturing processes, analyses, 
guarantees, and scientific or irrelevant matters that are likely to 
mislead the consumer. In the case of malt beverages, the labeling and 
advertising provisions of the FAA Act apply only if the laws of the 
State into which the malt beverages are to be shipped impose similar 
requirements. TTB is responsible for the administration of the FAA Act 
and the regulations promulgated under it.

C. Legislative History of the Federal Alcohol Administration Act

    With respect to TTB's authority to regulate the labeling of alcohol 
beverage products under the FAA Act, the Act's legislative history 
provides some insight as to the general purpose of the labeling 
provisions:

    * * * the provisions of this bill show that the purpose was to 
carry that regulation into certain particular fields in which 
control of interstate commerce in liquors was paramount and 
necessary. The purpose was to provide such regulations, not laid 
down in statute, so as to be inflexible, but laid down under the 
guidance of Congress, under general principles, by a body which 
could change them as changes were found necessary.
    Those regulations were intended to insure that the purchaser 
should get what he thought he was getting, that representations both 
in labels and in advertising should be honest and straight-forward 
and truthful. They should not be confined, as the pure-food 
regulations have been confined, to prohibitions of falsity, but they 
should also provide for the information of the consumer, that he 
should be told what was in the bottle, and all the important factors 
which were of interest to him about what was in the bottle.

See Hearings on H.R. 8539 before the Committee on Ways and Means, House 
of Representatives, 74th Cong., 1st Sess. 10 (1935).

VI. Discussion of Comments on Notice No. 41

    In response to Notice No. 41, TTB received over 19,000 comments 
from consumers, consumer advocacy groups, Government officials, alcohol 
beverage industry members and associations, health organizations, and 
other concerned individuals.

A. Comments Regarding Alcohol Content

    In Notice No. 41, TTB requested comments on the issue of whether 
the regulations should be amended to require an alcohol content 
statement on all alcohol beverage labels. There was significant 
disagreement as to whether the listing of alcohol content should be 
mandatory.
    Many professional health organizations (including, among others, 
the American Society of Addiction Medicine, the American Medical 
Association (AMA), the American Nurses Association, and the American 
Council on Science and Health) as well as the Distilled Spirits Council 
of the United States (DISCUS), CSPI, NCL, and many consumers and other 
commenters supported mandatory alcohol content labeling for all alcohol 
beverage products. CSPI commented:

    Requiring all alcoholic beverages, whether beer, wine, distilled 
spirits, malternatives, or others, to be labeled for alcohol content 
is essential. Alcohol can be harmful when consumed in excess and 
even addictive for a substantial number of consumers. For that 
reason, labeling should provide clear information that allows 
consumers to measure and moderate their drinking. [Emphasis in the 
original.]

    As previously stated above, the original petition from CSPI, NCL, 
and others, noted that a consumer survey indicated that 94 percent of 
respondents supported mandatory alcohol content labeling on alcohol 
beverages, with 77 percent of consumers strongly supporting such a 
requirement. The petitioners argued that ``the growing popularity of 
new, non-standard types of alcoholic beverages (e.g., lite beers, ice 
beers, malt liquors, hard lemonades, hard colas, wine coolers, other 
ready to drink `alcopops,' fortified wines, and `zippers [ready-to-
drink liquor shots],' makes it even more difficult for consumers to 
accurately estimate their alcohol consumption.''
    Some commenters suggested that mandatory alcohol content labeling 
is especially important given the problems caused by alcohol abuse. The 
Marin Institute suggested that ``clear, consistent and informative 
labeling--particularly with respect to alcohol content and serving 
size--will help

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consumers avoid some of these problems by reducing over consumption.'' 
The NCL also suggested that ``better information about alcohol content 
per serving is especially important and should be given the highest 
priority because of the many public health problems caused by excessive 
consumption of alcohol.''
    The Consumer Federation of America (CFA), a nonprofit association 
of 300 local, state and national consumer interest groups representing 
more than 50 million Americans, stated:

    Given the many public health problems caused by excessive 
consumption of alcohol, providing consumers better label information 
about alcohol content should be TTB's highest priority in this 
rulemaking. Providing consumers more information about alcohol 
content would help consumers make responsible drinking decisions and 
would help them follow the Dietary Guidelines' advice on moderate 
alcohol consumption. Potential benefits include reduced alcohol 
abuse, reduced drunk driving, and a reduction in the many diseases 
attributable to excessive alcohol intake.

The CFA further stated that such alcohol content is arguably required 
by the FAA Act, noting that it requires labels of alcohol beverages to 
provide ``adequate information'' on the identity, quality, and alcohol 
content of regulated products. The CFA also noted that the FAA Act 
provision prohibiting alcohol content information on labels of malt 
beverages was struck down as unconstitutional by the U.S. Supreme Court 
in Rubin v. Coors Brewing Company over ten years ago.
    DISCUS noted that both large and small distillers have had a 
mandatory alcohol content labeling requirement for the past seventy 
years, and suggested that all alcohol beverage products should be 
required to bear alcohol content information, as this information is 
used by consumers to drink responsibly.
    Other commenters, most notably members of the beer industry, 
objected to the extension of mandatory alcohol content labeling 
requirements to all malt beverages. The Beer Institute, a national 
trade association that represents domestic and international brewers, 
stated:

    The alcohol content of most beer is in a very narrow range, and 
consumers are generally aware of that fact. A weighted average of 
the alcohol content of the top 20 brands of domestic and imported 
beer based on 2004 sales data is 4.5 percent alcohol by volume. 
These brands account for 78.1 percent of the beer volume sold in the 
United States in 2004. Flavored malt beverage brands, none of which 
is in the top 20 brands, are required to display alcohol content by 
volume.

    The Brewers Association, an organization representing approximately 
1,400 small brewers and thousands of homebrewers and beer enthusiasts, 
commented in support of optional alcohol content statements on beer 
labels, but suggested that imposing mandatory alcohol content labeling 
requirements for malt beverages ``would stand congressional intent on 
its head and impose unnecessary costs on the industry.'' The comment 
noted that the FAA Act, as enacted, prohibited brewers from stating 
alcohol content on labels unless required by State law, and suggested 
that while the Supreme Court had overturned, on First Amendment 
grounds, the ban on the use of voluntary alcohol content statements, 
Congress had never distanced itself from its original intent on this 
matter. The Brewers Association thus stated that ``[w]hile TTB has, out 
of necessity, adjusted its alcohol content labeling rules to 
accommodate the demands of the First Amendment, it should not go 
further by imposing a rule that would require the very information that 
Congress saw fit to prohibit.'' [Emphasis in the original.]
    The Serving Facts and Alcohol Facts panels presented in Notice No. 
41 included alcohol content. Both panels expressed alcohol in U.S. 
fluid ounces of pure alcohol, and the Alcohol Facts panel also 
expressed alcohol content in percentage of alcohol by volume. 
Commenters disagreed on how to express alcohol content on an 
information panel. Diageo and many other commenters supported the 
listing of alcohol content in U.S. fluid ounces per serving, asserting 
that this information could be used by consumers to regulate their 
alcohol intake and follow the Dietary Guidelines advice on moderate 
drinking. It should be noted that the 2005 Dietary Guidelines provide 
that for purposes of explaining moderation, 12 fluid ounces of regular 
beer, 5 fluid ounces of wine, or 1.5 fluid ounces of 80-proof distilled 
spirits count as one drink; thus, the implication is that a ``drink'' 
would be equal to about 0.6 fluid ounces of pure alcohol. Some 
commenters further asserted that a consumer would not as easily be able 
to determine how many ``drinks'' he or she is consuming if alcohol 
content were only expressed as a percentage of alcohol by volume.
    The National Consumers League suggested that ``the alcohol content 
of a beverage is a function of both serving size and percent alcohol by 
volume. Providing the amount of alcohol per serving would express 
alcohol content in a single number and thereby enable consumers to make 
comparisons between different products based on their alcohol 
content.''
    The staff of the United States Bureau of Consumer Protection, the 
Bureau of Economics, and the Office of Policy Planning of the Federal 
Trade Commission (hereinafter collectively referred to as the FTC 
staff) supported disclosure of alcohol content in ounces of pure 
alcohol, stating:

    The amount of alcohol in beverages varies widely. Many popular 
beverages--12 ounces of regular beer containing 5% alcohol by volume 
(`ABV'), 5 ounces of wine containing 12% ABV or 1.5 ounces of 80 
proof distilled spirits--deliver 0.6 ounces of pure alcohol. 
Numerous other popular beverages, however, contain more or less 
alcohol. Beers in the marketplace range from approximately 3.3% to 
17% ABV, thus delivering between 0.39 and 2 ounces of pure alcohol 
per serving. Wines range from 6% to 18% ABV, i.e., providing between 
0.3 and 0.9 ounces of alcohol in a 5-ounce serving. Distilled 
spirits range from 15% to 75% ABV, i.e., providing 0.22 to 1.1 
ounces of alcohol per serving. [Footnotes omitted.]

    The FTC staff suggested that information about alcohol on labels 
may help consumers make better-informed decisions, stating that 
``research shows that in many instances, consumer decisions are made at 
the point of purchase.'' [Footnote omitted.]
    CSPI, which originally proposed the listing of alcohol content on 
labels as both a percentage of alcohol by volume and in U.S. fluid 
ounces of pure alcohol, submitted a comment reflecting a change in this 
position. CSPI explained that it no longer favored the labeling of 
alcohol in U.S. fluid ounces of pure alcohol, stating that ``[a]lthough 
a single drink of an alcoholic beverage may contain approximately 0.6 
ounces of alcohol, CSPI believes that it is unnecessary--and perhaps 
confusing--to put such information on a label.'' CSPI further stated 
that ``[c]onsumers do not think in those terms, but rather understand 
that drinks are served generally in standard, common sizes that vary 
according to the product.''
    Also voicing its opposition to the ounces of pure alcohol approach, 
a major brewer stated that when alcohol content is listed in fluid 
ounces per serving, the number of fluid ounces will rise and fall 
according to the serving size and, more importantly, will rise and fall 
according to the amount the consumer actually consumes. The brewer and 
many other commenters stated that depicting alcohol content in this 
manner may mislead consumers. The brewer suggested that alcohol content 
when expressed as a percentage of alcohol by volume is succinct, clear, 
accurate, neutral, easy to understand, and easy to compare. It also 
stated that

[[Page 41865]]

the percentage of alcohol by volume requires no explanation, 
definition, or graphic icon, but is a consistent measure that does not 
vary or fluctuate with the size of the drink.
    The Beer Institute opposed expressing alcohol content in fluid 
ounces for the following reasons:

    As compared to labeling beverages in terms of their alcohol 
concentration, or percent alcohol by volume, labeling beverages in 
ounces of absolute alcohol is misleading because beverage 
categories, types, and packages vary in alcohol potency. To achieve 
the informational goals of TTB and various petitioners, a consumer 
must compare disparate serving sizes for each product, number of 
servings in a container, and amount of pure alcohol contained in the 
stated serving size. Furthermore, the use of a standard serving size 
is not consistent with the manner in which many alcohol beverages 
are actually consumed. [Emphasis in original.]

    Several commenters further asserted that the display of a 
percentage of alcohol by volume remains the best means of indicating 
alcohol content on a product label or in advertising. Some commenters 
noted that the higher the percentage, the stronger the alcohol and its 
effect.
    Several other commenters stated that displaying alcohol content in 
U.S. fluid ounces per serving is unnecessary, misleading, and 
potentially harmful to the consumer. Other commenters contended that 
such labeling may be in violation of State law and regulations, as most 
states require alcohol content to be listed as a percentage of alcohol 
by volume.
    Several public health organizations suggested other methods of 
depicting alcohol content. These include content expressed as a 
percentage of alcohol by weight, and alcohol expressed in grams.
TTB Response
    TTB believes that the alcohol content of a beverage is one of the 
most important pieces of information about that product. We agree with 
those commenters who stated that labels should provide the consumers 
with this very basic information. We also believe that consumers use 
information about alcohol content to measure and moderate their 
drinking.
    As previously noted, the provisions of the FAA Act regarding the 
labeling of alcohol content differ by commodity. Accordingly, the 
current regulations that implement the labeling provisions of the FAA 
Act also differ by commodity. Alcohol content statements are already 
required for all distilled spirits products. See 27 CFR 5.32(a)(3), 
5.37 and 19.643(b). Wines containing more than 14 percent alcohol by 
volume must also bear alcohol content statements; however, under 
current regulations wines with an alcohol content of at least 7 percent 
but no more than 14 percent by volume may be labeled with the 
designation ``table wine'' or ``light wine'' in lieu of a percent 
alcohol by volume statement. See 27 CFR 4.36(a). Finally, with the 
exception of certain flavored malt beverages that derive alcohol from 
added ingredients (see 27 CFR 7.22(a)(5)), malt beverages are not 
required to bear an alcohol content statement under current 
regulations.
    In previous documents published in the Federal Register, TTB and 
its predecessor agency, ATF, have indicated an intention to examine the 
issue of requiring alcohol content on malt beverage labels. In 1993, 
after the United States District Court for the District of Colorado 
first struck down the ban on alcohol content on malt beverage labels as 
unconstitutional, and before the case went to the Supreme Court, which 
also held that the ban violated the First Amendment, ATF issued an 
interim rule allowing optional alcohol content labeling for malt 
beverages. See T.D. ATF-339, 58 FR 21228 (April 19, 1993). In the 
preamble to that final rule, ATF stated that it believed that ``if a 
future court action ultimately does not uphold the existing statute 
prohibiting statements of alcoholic content, or if future legislative 
action removes the current statutory prohibition, then ATF would 
consider making the statement of alcoholic content mandatory on labels 
of malt beverages.'' See 58 FR 21229. Similarly, in 2005, in the 
preamble to the final rule on flavored malt beverages, TTB addressed 
comments that favored mandatory alcohol content for all malt beverages 
by stating that while we were ``not unsympathetic to the comments 
suggesting mandatory alcohol content labeling for all malt beverages, 
we are not in a position to implement such a rule without notice and 
public comment.'' See TTB T.D.-21, 70 FR 194, 221 (January 3, 2005).
    After reviewing the comments received in response to Notice No. 41, 
TTB is now proposing to require alcohol content statements on the 
labels of all alcohol beverage products, including table wines and all 
malt beverages. As noted by CSPI, alcohol can be harmful when consumed 
in excess; thus, labeling should provide information that allows 
consumers to measure and moderate their drinking. We received many 
comments that made similar points from public health organizations, 
including the American Society of Addiction Medicine, the AMA, the 
American Nurses Association, and the American Council on Science and 
Health.
    We agree with those commenters who suggested that providing 
consumers with more information about alcohol content may help them 
make responsible drinking decisions. The Beer Institute commented that 
the alcohol content of most beer is generally in a narrow range, with a 
weighted average of the alcohol content of the top 20 brands in 2004 
being 4.5 percent alcohol by volume. However, while most beer sold is, 
in fact, within this narrow range, we are also aware of beers being 
sold today in the United States with an alcohol content as high as 24 
percent alcohol by volume. Unless the brewer chooses to place this 
information on the label, the consumer has no way of knowing whether 
the alcohol content of the malt beverage he is purchasing is 4.5 
percent alcohol by volume or over 5 times that amount. Consumers should 
not be forced to resort to guesswork about this important element of 
the alcohol beverages they consume. While table wines fall by 
definition within a certain range of alcohol content, those wines at 
the top of the range (14 percent) have an alcohol content twice as high 
as those wines at the bottom of the range (7 percent). Again, this is 
important information to consumers, and it should be presented on the 
label. We agree with the suggestion by the FTC staff that because of 
the significant variety in the alcohol content of alcohol beverages, 
label disclosures about alcohol content may assist consumers in 
choosing among categories and brands.
    The Brewers Association suggested that requiring alcohol content 
statements on malt beverages would be contrary to the congressional 
intent expressed when the FAA Act was enacted in 1935. We recognize 
that the FAA Act, as enacted, specifically prohibited the placement of 
alcohol content statements on malt beverage labels, unless required by 
State law. This provision of the law was found to be unconstitutional 
by the Supreme Court in Rubin v. Coors Brewing Co., 514 U.S. 476 
(1995). This action by the Court leaves the Secretary with authority to 
either allow or require alcohol content statements on malt beverage 
labels. In fact, as previously noted, we have already issued 
regulations requiring alcohol content statements on certain flavored 
malt beverage labels.
    We also recognize that the FAA Act does not require alcohol content 
statements on labels of wines containing 14 percent alcohol by volume 
or less. Accordingly, as stated above, our

[[Page 41866]]

regulations implemented under the FAA Act provide that labels for such 
products may either express alcohol content as a percentage of alcohol 
by volume or they may bear the type designation to which they are 
entitled based on the product's alcohol content (for example, ``table 
wine'' or ``light wine.'') See 27 CFR 4.36.
    The implementing regulations under the IRC require alcohol content 
to be labeled on all wine containers; however, they incorporate by 
reference the rules under 27 CFR part 4. See 27 CFR 24.257(a)(3). This 
incorporation of the rules under part 4 results in a somewhat 
inconsistent effect. The IRC regulations require wines under 7 percent 
by volume (which are not ``wines'' under the FAA Act and thus fall 
under the FDA's labeling jurisdiction) to bear a percent-alcohol-by-
volume statement; however, they do not require the same statement on 
wines with an alcohol content of 7 to 14 percent alcohol by volume. TTB 
believes that the listing of alcohol content should be consistent for 
all wines regardless of their alcohol content. Accordingly, we are 
proposing to amend Sec.  24.257(a)(3) of the TTB regulations to require 
alcohol content, expressed in terms of percent-alcohol-by-volume, on 
all wine labels. We believe that this amendment would serve an 
important revenue purpose, as the alcohol content of a wine is one 
factor in determining its tax classification. See 26 U.S.C. 5041(b). We 
also believe that our statutory authority under the FAA Act allows us 
to issue regulations regarding the placement of the mandatory alcohol 
content statement.
    Accordingly, TTB is proposing that alcohol content, expressed as a 
percentage of alcohol by volume, must appear on labels for all alcohol 
beverages subject to our labeling jurisdiction under the FAA Act.
    TTB is proposing to allow the mandatory alcohol content statement 
to appear on any label affixed to the container including, at the 
option of the industry member, as part of a Serving Facts panel as 
discussed later in this document. This approach is required in order to 
conform to a trade agreement among the United States, Australia, 
Argentina, Canada, Chile, and New Zealand, in which it was agreed that 
wines may be imported bearing certain common mandatory information 
(including alcohol content) on any wine label on the container, as long 
as such information is in a single field of vision. TTB is further 
proposing to remove Sec. Sec.  4.32(a)(3), 5.32(a)(3) and 7.22(a)(5), 
which mandate placement of alcohol content statements for wine, 
distilled spirits, and malt beverages on the brand label. Under the 
proposed regulatory changes, listing alcohol content on a Serving Facts 
panel or elsewhere on the label would satisfy the labeling requirement.
    After careful consideration of the comments, TTB continues to 
believe that the display of a percentage of alcohol by volume is the 
best way to express alcohol content on a product label or in 
advertisements. We believe that consumers are familiar with alcohol 
content expressed in this manner. By contrast, consumers have little or 
no familiarity with alcohol expressed in U.S. fluid ounces of pure 
alcohol. Indeed many commenters, including CSPI, suggested that such 
statements might confuse consumers.
    However, we note that several commenters suggested that presenting 
alcohol in fluid ounces per serving may provide consumers with useful 
information. As the NCL noted in its comment, providing this 
information may enable consumers to more easily make comparisons 
between different products based on their alcohol content.
    TTB does not believe that the disclosure of alcohol in fluid ounces 
is inherently misleading; however, we agree that consumers are used to 
seeing alcohol content expressed as a percentage of alcohol by volume 
and might be confused by a statement of alcohol in fluid ounces, 
without some context in which to evaluate this information. For these 
reasons, TTB is not proposing that the panel include a mandatory 
statement of alcohol in U.S. fluid ounces of pure alcohol per serving. 
We agree that the number of fluid ounces of alcohol per serving might 
be confusing in isolation; however, we believe that it would not be 
confusing if presented together with a traditional alcohol content 
statement. Furthermore, this information might be useful to consumers, 
and would allow them to compare the quantity of alcohol contained in 
single servings of different commodities without doing mathematical 
calculations.
    Accordingly, we are proposing to permit the additional display of a 
statement of the number of fluid ounces of alcohol per serving, as long 
as it includes a statement of alcohol content expressed as a percentage 
of alcohol by volume. The proposed rule further provides that the 
heading ``fl oz of alcohol'', if it appears in the Serving Facts panel, 
must be indented beneath the heading ``Alcohol by volume.''
    As previously noted, the proposed rule would allow the mandatory 
alcohol content statement to appear on the Serving Facts panel or 
elsewhere on the label, or both on the Serving Facts panel and 
elsewhere; however, if the industry member chooses to list the number 
of fluid ounces of pure alcohol in the product, the proposed rule 
provides that such information must appear as part of the Serving Facts 
panel. As noted in the comments, the percentage of alcohol by volume in 
a given product does not change based on the serving size; however, the 
number of ounces of pure alcohol does. Thus, to provide context for the 
consumer, the ounces of pure alcohol must appear as part of the Serving 
Facts panel, which also discloses the serving size and the number of 
servings per container. Because the number of fluid ounces of alcohol 
per serving must appear together with the alcohol content statement, 
this means that industry members choosing to disclose the number of 
ounces of alcohol per serving must put both this statement and the 
percentage of alcohol by volume together in the Serving Facts panel.
    We believe that by allowing the use of a statement of fluid ounces 
of alcohol only if it appears directly underneath a statement of 
alcohol content on a Serving Facts panel, consumers may come to 
understand the relationship between alcohol content expressed as a 
percentage of alcohol by volume and the expression of the number of 
fluid ounces of pure alcohol per serving.

B. Comments Regarding Calorie and Nutrient Labeling and Advertising

    In Notice No. 41, TTB requested comments on the issue of listing 
calorie and nutrient information on alcohol beverage labels and in 
advertisements. Over 18,500 consumers who responded to Notice No. 41 
indicated that they would like to see this additional information on 
alcohol beverage labels.
    Most of these comments were form letters generated through a 
letter-writing campaign initiated by Diageo, a major alcohol beverage 
producer, through its Web site at https://www.knowyourdrink.com. 
Consumers who visited the Web site were invited to submit a comment to 
TTB on this issue. If consumers chose to submit a comment, the Web site 
would then generate and forward one of over 20 different form letters 
to TTB. Many of these consumers expressed confusion as to why alcohol 
beverage labels do not currently bear this type of information, and 
some expressed the belief that TTB prohibited the use of this 
information on labels. The response by consumers who took the time to 
show their support for calorie and nutrient information on alcohol 
beverage labels via the https://

[[Page 41867]]

www.knowyourdrink.com Web site was numerically significant (over 
18,000).
    TTB received many other comments in support of the display of 
calorie and nutrient information per serving. Many of these commenters 
stated that they use facts about calories and nutrient content of the 
products they eat and drink to balance their diets. Several commenters, 
including the NCL, suggested that calorie information on alcohol 
beverage labels would help consumers maintain their weight within a 
healthy range consistent with the ``Dietary Guidelines for Americans'' 
advice. Commenting on this issue, CSPI explained that:

    * * * Alcohol provides a significant portion of calories (3% to 
5%) in the American diet (for heavier drinkers, it contributes even 
more generously) and many drinkers and other consumers watch their 
calorie intake in order to help maintain a healthy weight. 
Particularly today, when drinking is widely portrayed as an adjunct 
(if not a prerequisite) to a healthy lifestyle, and popular, newer, 
ready-to-drink concoctions often contain more than 200 calories per 
serving, calorie information takes on added importance. Obesity and 
excessive weight represent substantial threats to individual and 
public health. The medical and other costs related to those problems 
are staggering, and continue to grow, along with the human 
suffering. Calorie labeling could provide a constant, low-cost 
reminder that alcohol consumption adds generally empty, 
discretionary calories to the diet. Along with other educational and 
policy approaches, such labeling could help raise awareness and 
potentially provide information that consumers can use to modify 
their drinking behavior.

    The NCL, as well as Shape Up America, which is a non-profit 
organization concerned with public health issues, referred to a recent 
FDA report, Report of the Obesity Working Group, ``Calories Count,'' 
March 12, 2004, available at (https://www.cfsan.fda.gov/dms/owg-
toc.html), which concludes that maintaining a healthy weight is a 
matter of counting and balancing calories consumed and expended. Shape 
Up America explained that awareness of the calorie content of food and 
beverages is essential to implementing this energy balance strategy. 
Many other commenters, including the American Council on Science and 
Health, a consumer education consortium concerned with public health 
issues, asserted that at a time when the prevalence of obesity is 
becoming a significant public health threat, information about the 
content of all foods and beverages should be presented to consumers in 
a standardized, clear format to allow them to make well-informed 
choices.
    The American Dietetic Association (ADA), which is the largest 
association of food and nutrition professionals and represents nearly 
65,000 members, also commented in support of calorie and nutrient 
labeling. The ADA asserted that nutrition and ingredient labeling of 
alcohol beverage products will contribute positively to public health 
measures to reduce the current burden of chronic disease, including 
obesity, hypertension, diabetes, and dyslipidemia. The ADA stated that 
it supports initiatives to label wine, distilled spirits, and malt 
beverages to provide information consumers can use to maintain health, 
including a healthy body weight, and to manage chronic conditions such 
as diabetes. This comment asserted that such information would be best 
conveyed within the context of dietary guidance based on the ``Dietary 
Guidelines for Americans 2005,'' which includes advice on the 
consumption of alcohol beverage products. The ADA also stated that the 
growing health care costs associated with the rise in chronic diseases 
and conditions, which can be attributed to over-consumption of foods 
and beverages, including those containing alcohol, more than justify 
the costs of revising labels.
    TTB received several comments from individuals who suffer from 
diabetes. These commenters explained that access to nutrition 
information is critical to their efforts to control their disease. One 
commenter states that ``as a diabetic, I am especially interested in 
the carbohydrate content of all food and beverages. This is vital 
information in order to determine necessary insulin administration.'' 
Another commenter, a State policy maker and also a diabetic, stated 
that he regularly checks labels for portion size and nutritional 
content. He explained that this type of information is invaluable in 
his efforts to control his disease. Another commenter, The Social & 
Health Research Center, explained that between 2001 and 2004 diabetes 
rates grew by 55 percent. They state that the key to this disease is 
prevention, and explained that a large national study, the Diabetes 
Prevention Program, reported that high risk individuals who practiced 
healthy lifestyles were able to reduce their diabetes risk by 58 
percent. This commenter, like others, stressed that it is extremely 
important for people with diabetes and at risk for diabetes, who choose 
to drink alcohol, to have complete information about the contents of 
these beverages. The commenter further stated that alcohol is a 
significant source of calories and that excessive alcohol consumption 
makes it difficult to ingest sufficient nutrients within an 
individual's daily calorie allotment and to maintain a healthy weight.
    The FTC staff also commented in support of amending the TTB 
regulations to require that alcohol beverage labels disclose alcohol 
and nutrient content (calories, carbohydrates, fat, and saturated fat) 
per serving, stating that such a change would be likely to have 
beneficial effects on consumers and competition. The FTC staff did not 
comment on the listing of protein. Their comment asserted that 
information on labels about the attributes of alcohol beverages would 
help consumers select beverages they prefer, including making 
selections consistent with the recommendations of public health 
agencies. Additionally, the FTC staff indicated that such labeling 
would encourage manufacturers to compete based on the nutritional (for 
example, calorie and carbohydrate content) attributes of their 
beverages. The FTC staff also stated that such requirements should not 
extend to advertisements because advertising differs from labeling in 
important ways that make it likely that the costs of mandatory 
disclosure in advertisements would outweigh its benefits.
    The FTC staff also noted that alcohol varies significantly in 
calories per serving, pointing to beers that ranged from 95 to 340 
calories per serving; spirits that ranged from 48 to 180 calories per 
serving, and wines that ranged from 100 to 235 calories per serving. 
This comment also noted ranges in carbohydrate content, with beers 
ranging from 5 to 22 grams of carbohydrates per serving, spirits 
ranging from 0 to 18 grams of carbohydrates per serving, and wines 
ranging from 1 to 18 grams of carbohydrates per serving. While alcohol 
beverages generally do not contain fat, there are distilled spirits 
specialty products that contain fat from cream, milk, or coconut.
    TTB did not receive any specific comments against providing calorie 
information on alcohol beverage labels; however, a few commenters were 
generally opposed to listing any calorie or nutrient information on 
alcohol beverage labels. Some of these commenters stated that alcohol 
beverage products are consumed for pleasure and not for nutritional 
content; therefore, nutritional and calorie content labeling should not 
be required. One commenter cautioned that alcohol consumption is not a 
part of a healthy lifestyle and that those on diets should not be 
drinking any alcohol.
    A few commenters were opposed to listing information about certain 
nutrients. The AMA, while expressing

[[Page 41868]]

support for the listing of the number of calories as well as the number 
of grams of carbohydrate, fat, and protein per serving, suggested that 
fats and protein only be listed if they reach a threshold.
    Like the AMA, CSPI suggested that the listing of fats and proteins 
should be permitted only if they meet a certain meaningful, minimum 
threshold amount. CSPI commented that listing information on 
carbohydrate, fat, and protein content on alcohol beverage labels 
provides little value to consumers and may even do harm. Specifically, 
CSPI expressed concern that listing such information on alcohol 
beverage labels might suggest to consumers that the product is akin to 
food and represents an ordinary source of nutrition.
    Several other commenters stated that nutrition information on 
alcohol beverage products should be limited to only calories and 
carbohydrates. One commenter suggested that listing protein on alcohol 
beverage labels might convince a consumer to drink more of the product 
to get more protein. Some commenters also expressed concern that 
listing fat content could open the door to ``no-fat'' claims for 
alcohol beverages, which are typically directed towards health foods.
    A few commenters expressed concern that listing nutrient content on 
alcohol beverage labels could be misleading. A large brewing company 
commented that the Alcohol Facts panel would be inappropriate, and 
stressed the differences in the labeling of food and alcohol beverages. 
The commenter made the following point:

    Food labels present detailed nutrient content and dietary 
information in the context of a healthy diet. The servings of listed 
items such as carbohydrates, cholesterol, protein and fat are 
expressed not only in grams, but also in a percentage daily value 
based on a 2,000 calorie diet. The 2,000 calorie diet has no 
equivalent in alcohol products, which have no recommended daily 
nutritional value. Furthermore, adding nutritional recommendations 
would contradict TTB's statements opposing the placement of health 
claims on alcohol beverage labeling.

    The Beer Institute commented that TTB should move with extreme 
caution on any rulemaking to mandate or permit nutritional labeling 
similar to that required by FDA on the food and beverage products it 
regulates. Its comment suggested that any such change should only be 
considered after thorough research and a formal agency determination 
that changes in the label format or display of additional information 
would be consistent with the intent of Congress and in the public 
interest. The Beer Institute instead supported the current TTB policy 
of voluntary disclosure of a statement of average analysis on labels 
for all types and categories of alcohol beverages. (TTB Ruling 2004-1 
allows the use of calorie and carbohydrate references on alcohol 
beverage labels and in advertisements as part of, or in conjunction 
with, a statement of average analysis listing the serving size as well 
as the number of calories, and the number of grams of carbohydrates, 
protein, and fat, per serving.)
TTB Response
    As noted earlier in this document, the purpose of the FAA Act is, 
in part, to ensure that alcohol beverage products are labeled and 
advertised in a manner that will provide the consumer with ``adequate 
information'' as to the identity and quality of the product, and to 
prohibit false or misleading statements. As explained in the 
legislative history, Congress purposefully avoided laying out specific 
statutory requirements, opting instead to lay down general guidance so 
that the Department of the Treasury would have the flexibility to draft 
regulations and change them when necessary. Congress further intended 
that the purchaser or consumer should be told what was in the bottle, 
and all the important factors which were of interest to the consumer 
about the product.
    The comments resulting from Notice No. 41 clearly indicate that 
consumers are very interested in having information about the calorie 
and nutrient content of the alcohol beverage products they purchase. 
These consumers expressed the view that this information should be 
available on the product's label. In fact, many commenters feel that 
this information is vital to health decisions they make on a daily 
basis. These comments seem consistent with the results of the survey 
submitted with the CSPI and NCL petition, in which 89 percent of the 
respondents supported mandatory labeling of calorie content on alcohol 
beverage labels, with 65 percent of the respondents strongly supporting 
such a requirement.
    TTB agrees with those commenters who indicated that the calorie and 
nutrient content of alcohol beverages may constitute important 
information for consumers interested in monitoring their overall intake 
of calories, carbohydrates, protein, and/or fat. TTB believes it is 
important for consumers to have the ability to make informed decisions 
about the alcohol beverage choices they make. To make informed choices, 
consumers should have access to information on the calorie, nutrient, 
and alcohol content of alcohol beverage products. Without this 
information, TTB believes a consumer cannot adequately judge the 
consequences of the beverage selections that he or she makes.
    TTB notes that thousands of comments generated by the https://
www.knowyourdrink.com Web site stated or implied that TTB does not 
allow the placement of calorie, carbohydrate, protein, and fat 
information on alcohol beverage labels. This is incorrect. As explained 
above, TTB's current policy, as most recently set forth in TTB Ruling 
2004-1, is to allow producers who wish to put this information on 
alcohol beverage labels to do so, as long as they include a complete 
statement of average analysis which lists the number of calories, and 
the number of grams of carbohydrates, protein, and fat, per serving. 
The fact that so many of the consumer commenters were unaware that this 
information already appears on many alcohol beverage labels gives rise 
to questions as to whether our current policy, which allows the 
optional placement of calorie and nutrient information on alcohol 
beverage labels, provides adequate information to consumers about the 
identity and quality of the product. Given the fact that consumers are 
used to seeing calorie and nutrient information presented in a 
standardized format on food labels, it is possible those labels that 
currently bear statements of average analysis are not presenting this 
information in a way that is consistent and easy for consumers to 
notice and understand.
    Based on our review of the comments, TTB believes that the calorie 
and nutrient content of alcohol beverages may constitute a material 
factor in a consumer's decision to purchase such beverages, and that 
under the FAA Act and as supported by its legislative history it is 
appropriate to require that labels present this data for the consumer's 
consideration. In this respect, our mandate under the FAA Act to ensure 
that consumers have adequate information about the identity and quality 
of the product is similar to the intent under those provisions of the 
current Food and Drug Cosmetic Act (FD&C Act) that state that the 
labeling of a food is misleading if it fails to reveal the material 
facts with respect to the consequences that may result from use of the 
food. See 21 U.S.C. 321.
    TTB does not agree with those commenters who suggested that certain 
nutrients should not be labeled unless they meet a certain threshold 
level. For 30 years, brewers have included calories, carbohydrates, fat 
and protein

[[Page 41869]]

in a statement of average analysis on labels of malt beverages that 
made calorie or carbohydrate claims. We have seen no evidence that 
these labels misled consumers into believing that such products 
constituted good sources of nutrients. Furthermore, such statements are 
not specific health claims or health-related statements. Our current 
regulations define the term ``health-related statement'' to include 
statements and claims of nutritional value, but go on to provide that 
``statements concerning caloric, carbohydrate, protein, and fat content 
do not constitute nutritional claims about the product.'' See 27 CFR 
4.39(h)(1)(i), 5.42(b)(8)(1)(A) and 7.29(e)(1)(i).
    Finally, as pointed out by the FTC staff, there is a significant 
range in calories and carbohydrates among alcohol beverages. While most 
alcohol beverages do not contain fat, some distilled spirits specialty 
products contain fat from cream, milk, or coconut. Consumers should be 
able to readily determine the calorie and nutrient content of an 
alcohol beverage before deciding whether to purchase or consume the 
product.
    Accordingly, pursuant to TTB's statutory authority under the FAA 
Act to require information on labels that will provide consumers with 
adequate information about the quality and identity of the product, we 
are proposing to amend the TTB regulations to require a ``Serving 
Facts'' panel on alcohol beverage labels, and to require such a panel 
on any advertisement that makes a calorie or carbohydrate 
representation. We believe that this information should be presented to 
consumers in a uniform, standardized format that is prominent on the 
label, so that consumers may easily avail themselves of this important 
information. The format and other elements included in the ``Serving 
Facts'' panel are discussed later in this document.

C. Comments Concerning Inclusion of a Definition of Moderate Drinking 
on Alcohol Beverage Labels

    In Notice No. 41, TTB sought comments on the feasibility and 
desirability of an Alcohol Facts panel containing, among other 
information, the statement: ``U.S. Dietary Guidelines advice on 
moderate drinking: No more than two drinks per day for men, one drink 
per day for women.'' Several commenters supported the idea of 
displaying this definition of moderate drinking on alcohol beverage 
labels. Specifically, these commenters stated that this information 
will help consumers moderate their drinking.
    DISCUS cautioned that including the Dietary Guidelines advice 
regarding moderate drinking may run afoul of the Bureau's rules and 
current guidance to industry regarding health claims and other health-
related statements. The Beer Institute asserted that the Dietary 
Guidelines statement represented in the Alcohol Facts panel is a health 
statement; therefore, TTB should prohibit it. Further, the Beer 
Institute contended that the Dietary Guidelines are detailed and 
carefully sourced, making the information impractical to disclose in a 
meaningful manner on a label or in an advertisement.
TTB Response
    The Dietary Guidelines recommend that if adults choose to drink 
alcohol beverages, they should consume them only in moderation. The 
term ``moderation'' is defined in the Dietary Guidelines as the 
consumption of up to one drink per day for women and up to two drinks 
per day for men. For purposes of illustrating moderation, the Dietary 
Guidelines explain that 12 fluid ounces of regular beer, 5 fluid ounces 
of wine, or 1.5 fluid ounces of 80-proof (40 percent alcohol by volume) 
distilled spirits, count as one drink. The Dietary Guidelines further 
state that this definition of moderation is not intended as an average 
over several days but rather as the amount consumed on any single day. 
In addition to the definition of moderate drinking, the Dietary 
Guidelines provide approximately two pages of additional information 
about responsible alcohol consumption and what that means.
    For example, the Dietary Guidelines caution that even moderate 
alcohol consumption may have adverse affects in specific situations and 
on specific individuals. The Dietary Guidelines explain that 
individuals who plan to drive, operate machinery, or take part in other 
activities that require attention, skill, or coordination should avoid 
drinking alcohol beverages. Additionally, the Dietary Guidelines advise 
that children and adolescents, women of child bearing age who may 
become pregnant, pregnant and lactating women, individuals taking 
medications that can interact with alcohol, and individuals with 
specific medical conditions, should not drink at all. Even moderate 
drinking during pregnancy may have behavioral or developmental 
consequences for the baby, the Dietary Guidelines stress. Finally, the 
Dietary Guidelines also suggest that individuals of any age who cannot 
restrict their drinking to moderate levels should not drink at all. 
This last category is obviously hard to define, and may include many 
individuals who do not even realize that they fall within it.
    Based on our consideration of the comments, TTB believes that 
labeling alcohol beverage products with information about the 
definition of moderate drinking could tend to mislead consumers, 
without more specific cautionary information about those