TTB Alcohol Beverage Labeling & Advertising Regulations: Final Rule

[WhiskeyBlender]

Hi All:

 

If you are up for a little "light reading" (104 pages) during the Covid-19 stay-at-home period, this morning the TTB just published its final rule to address certain proposals included in Notice 176, Modernization of the Labeling & Advertising Regulations for Wine, Distilled Spirits, & Malt beverages. The final rule will be effective 30 days from the publication release. Please find the attachment below if you are interested in reading it in its entirety. 

 

In particular, the document identifies certain proposals that will not be adopted by the TTB, such as the definition of an "oak barrel" for purposes of aging distilled spirits, and a policy that would have limited “age” statements on distilled spirits labels to include only the time the product is aged in the first barrel, and not aging that occurs in subsequent barrels.

 

Cheers, grab a glass of your favorite Bourbon, and happy reading!

 

Nancy

 

https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-05939.pdf

Edited April 2, 2020 by WhiskeyBlender

[FasterHorses]

I dont have time right now to delve into it. But curious if you have any opinions on items contained in the doc? 
Why would this be the “final” rule and what led up to this final ruling and the need for it? 
 

[chrisbar1104]

The nerd in me found a lot of this interesting, even if the majority of it wasn't whiskey/bourbon related.  I think a lot of the highlights have found their way onto the web at this point, but there were a few things I either a) didn't know, or b) was interested in seeing the changes.

 

Some of those:

1) Bottled-in-Bond products can be from foreign markets, not just domestic.  This is allowed when the imported spirits are produced under the same rules that would apply to domestic spirits.  Not anything the TTB has changed, but fascinating to me to see it mentioned -- did not know this.

 

2) Bottled-in-Bond Gin can now be aged in wood containers with or without a paraffin lining.

 

3) The TTB is finalizing alcohol content tolerance as proposed, to plus or minus 0.3 percentage points

 

4) The TTB is amending the regulations in current § 5.40(d) to allow age statements on all distilled spirits except for neutral spirits (other than grain spirits).

 

5) The TTB agrees that the requirement that vodka be without distinctive character, aroma, taste, or color no longer reflects consumer expectations and should be eliminated. Vodka will continue to be distinguished by its specific production standards: Vodka may not be labeled as aged, and unlike other neutral spirits, it may contain limited amounts of sugar and citric acid.

 

6) The TTB also will liberalize its policy on the term ‘‘straight’’ and is amending current § 5.22(b)(2)(iii) to make it an optional labeling designation for whiskies that qualify for the designation.

 

There were the ones which caught my eye upon a brief, cursory glance. 

[GaryT]

Was hoping they might rule on the 'standards of fill' issue, but not in this release.  Fingers crossed  

[clearmoon247]

15 hours ago, GaryT said:

Was hoping they might rule on the 'standards of fill' issue, but not in this release.  Fingers crossed  

Can you elaborate on this?

[GaryT]

9 hours ago, clearmoon247 said:

Can you elaborate on this?

The TTB last summer proposed modifying the 'standards of fill', which currently restrict the sizes that distilled spirits can be packaged in (50 mL, 100 mL, 200 mL, 375 mL, 750mL, 1 liter, and 1.75 liters).  The rest of the world isn't on the same restrictions, and in fact the norm for a 'regular sized bottle' pretty much everywhere else is 700 mL.  

 

So if you are a small distillery in - say Ireland - and want to ship product to the US Market, you've got to do a whole run specifically in 750 mL - where the rest of the world is 700 mL.  And likewise - when US producers want to make exports, they too must change to 700 mL.  

 

I shared my thoughts here, but spoiler alert - I'm in favor of abandoning the current approach (and going with just an upper/lower limit).  If you're a fan of foreign offerings, such a change would allow for potentially a much wider offering here in the US.  Yes, it might lead to US producers going with just 700 mL across the board (which would save them money, but if they don't lower prices - short-change US consumers by 50 mL - or just under 2 oz per bottle).

 

[EarthQuake]

All of that, plus it would open up the possibility of 500ml bottles. Nikka From The Barrel is so much cuter in those 500ml bottles. We had to wait a while to get the 750ml bottles here in the US.

[smokinjoe]

This seems such an easy fix, that just gets bogged down in a number of special private interests and special governmental  interests on every side of every pond.

[Harry in WashDC]

On 4/2/2020 at 10:13 PM, FasterHorses said:

I dont have time right now to delve into it. But curious if you have any opinions on items contained in the doc? 
Why would this be the “final” rule and what led up to this final ruling and the need for it? 
 

Short answer - The Administrative Procedure Act (5 USC sec. 551 et seq.) is the federal law specifying the steps and time limits that apply to changes to federal regulations.  The minimum time between publication of a proposed rule and final adoption/change is 30 days, and public comment on the proposal is allowed and encouraged during that period.  The front part of the proposal MUST include the reason for the proposed change and what the changes will do. The Act requires the agency to consider all timely public comments when adopting a final rule.  As a couple commenters above noted, special interests and industry heavyweights can dominate such rule making.  Speaking for 20+ years of experience inside, agency persons LOVE comments from NON-industry commenters.  “Out of the mouths of babes . . .”  In other words, more than once, somebody outside the “interested/involved” circle of humans saw something ALL of us missed.  

EDIT: Pull up Nancy’s link and peruse the first few paragraphs about 3 pages in.   You’ll see a SUMMARY section stating the WHY.  By the way, the attorney and/or senior staffer responsible for the drafting is just a phone call away.  CALL and make his/her day as we almost never heard from consumers.

 

MORAL: SEND IN YOUR COMMENTS!!!!!

Edited April 6, 2020 by Harry in WashDC

[wadewood]

I put together my own summary of the changes - https://tater-talk.com/2020/04/05/ttb-update-cfrs-on-spirits/

Edited April 7, 2020 by wadewood

[Harry in WashDC]

Nice summary.  Thank you.

[FacePlant]

On ‎4‎/‎5‎/‎2020 at 8:49 PM, Harry in WashDC said:

Short answer - The Administrative Procedure Act (5 USC sec. 551 et seq.) is the federal law specifying the steps and time limits that apply to changes to federal regulations.  The minimum time between publication of a proposed rule and final adoption/change is 30 days, and public comment on the proposal is allowed and encouraged during that period.  The front part of the proposal MUST include the reason for the proposed change and what the changes will do. The Act requires the agency to consider all timely public comments when adopting a final rule.  As a couple commenters above noted, special interests and industry heavyweights can dominate such rule making.  Speaking for 20+ years of experience inside, agency persons LOVE comments from NON-industry commenters.  “Out of the mouths of babes . . .”  In other words, more than once, somebody outside the “interested/involved” circle of humans saw something ALL of us missed.  

EDIT: Pull up Nancy’s link and peruse the first few paragraphs about 3 pages in.   You’ll see a SUMMARY section stating the WHY.  By the way, the attorney and/or senior staffer responsible for the drafting is just a phone call away.  CALL and make his/her day as we almost never heard from consumers.

 

MORAL: SEND IN YOUR COMMENTS!!!!!

From the horse's mouth. Now ya know! Thanks Harry

[Harry in WashDC]

On 4/5/2020 at 9:49 PM, Harry in WashDC said:

Short answer - The Administrative Procedure Act (5 USC sec. 551 et seq.) is the federal law specifying the steps and time limits that apply to changes to federal regulations.  The minimum time between publication of a proposed rule and final adoption/change is 30 days, and public comment on the proposal is allowed and encouraged during that period.  The front part of the proposal MUST include the reason for the proposed change and what the changes will do. The Act requires the agency to consider all timely public comments when adopting a final rule.  As a couple commenters above noted, special interests and industry heavyweights can dominate such rule making.  Speaking for 20+ years of experience inside, agency persons LOVE comments from NON-industry commenters.  “Out of the mouths of babes . . .”  In other words, more than once, somebody outside the “interested/involved” circle of humans saw something ALL of us missed.  

EDIT: Pull up Nancy’s link and peruse the first few paragraphs about 3 pages in.   You’ll see a SUMMARY section stating the WHY.  By the way, the attorney and/or senior staffer responsible for the drafting is just a phone call away.  CALL and make his/her day as we almost never heard from consumers.

 

MORAL: SEND IN YOUR COMMENTS!!!!!

Um, while what I wrote is mostly correct, it is a bit misleading.  The rule at issue is a FINAL rule with a 30 day delayed effective date.  The proposed rule was published for comment months ago as Wade mentioned. Even though it is final, if you see things in it you think should be changed, go ahead and comment.  Also, the summary and discussion of the final rule must state the “why” for any changes as well as the expected burden on industry and on the public so if you want to know the intended effects, they should be explained in the notice.

Edited April 7, 2020 by Harry in WashDC

[wadewood]

What was published addressed some proposed changes that were tabled and some that were enacted.  However, going back to original modernization proposals, there were some things they took no action.  I'm curious if this are also dropped or perhaps we could still see more changes.

 

[Harry in WashDC]

15 hours ago, wadewood said:

What was published addressed some proposed changes that were tabled and some that were enacted.  However, going back to original modernization proposals, there were some things they took no action.  I'm curious if this are also dropped or perhaps we could still see more changes.

 

While I do not know whether the TTB will publish additional final rules based on the initial rulemaking proposal in this case, I expect that what we see now in the final rule is all we get in this round.  In other words, unless the final rule discussion says, "More is coming", then more will not be coming this time. The parts of the proposal that were ignored or not adopted but that the TTB still would like to adopt in some form probably would be put in another proposal with new discussion of "why" they are needed instead of being adopted as a final rule under the current process.

 

In the instances I worked on which had phased rule adoptions, they usually were the result of major, complex legislation requiring more than one agency to adopt rules, and those rules were inter-agency rules (i.e., multiple agencies each with its own jurisdiction or industry group had to sign off on a rule applicable to the all the jurisdictions and industry groups).  Also, the legislation had specific deadlines by which the various rules had to be adopted.  SO, we concentrated on the parts of the Act with the earliest deadlines, proposed rules for that part of the law and then worked on the next set of rules applicable to another part of the law and put that set in a separate proposal.  Final rules based on those proposals, therefore, were adopted in stages instead of being put in one big final rule.  When we were faced with a complex rule (or a recalcitrant agency), we adopted only the final parts we all agreed on BUT noted that some parts would be addressed in a separate rulemaking.

 

As I noted above, that does not mean the ignored/omitted parts are "gone forever".  More than once, we put those issues back in our "to be considered" pile and continued to collect info about them and to refine them.  Some made it into future proposals, and others were dropped because the additional info showed they really were not necessary.  The LAST thing we wanted to do was adopt some rule that was so confusing or burdensome that we'd generate calls from industry and the public asking for "clarification" or an "exception" or more regulatory "changes".  We had enough stuff to do without creating additional work for ourselves.

 

 

[GeeTen]

1 hour ago, Harry in WashDC said:

While I do not know whether the TTB will publish additional final rules based on the initial rulemaking proposal in this case, I expect that what we see now in the final rule is all we get in this round.  In other words, unless the final rule discussion says, "More is coming", then more will not be coming this time. The parts of the proposal that were ignored or not adopted but that the TTB still would like to adopt in some form probably would be put in another proposal with new discussion of "why" they are needed instead of being adopted as a final rule under the current process.

 

In the instances I worked on which had phased rule adoptions, they usually were the result of major, complex legislation requiring more than one agency to adopt rules, and those rules were inter-agency rules (i.e., multiple agencies each with its own jurisdiction or industry group had to sign off on a rule applicable to the all the jurisdictions and industry groups).  Also, the legislation had specific deadlines by which the various rules had to be adopted.  SO, we concentrated on the parts of the Act with the earliest deadlines, proposed rules for that part of the law and then worked on the next set of rules applicable to another part of the law and put that set in a separate proposal.  Final rules based on those proposals, therefore, were adopted in stages instead of being put in one big final rule.  When we were faced with a complex rule (or a recalcitrant agency), we adopted only the final parts we all agreed on BUT noted that some parts would be addressed in a separate rulemaking.

 

As I noted above, that does not mean the ignored/omitted parts are "gone forever".  More than once, we put those issues back in our "to be considered" pile and continued to collect info about them and to refine them.  Some made it into future proposals, and others were dropped because the additional info showed they really were not necessary.  The LAST thing we wanted to do was adopt some rule that was so confusing or burdensome that we'd generate calls from industry and the public asking for "clarification" or an "exception" or more regulatory "changes".  We had enough stuff to do without creating additional work for ourselves.

 

 

 

Ummm, ok - thanks, Harry (I think).  After my servitude on the USA Swimming Rules Committee, I firmly believe there are two (2) things you never want to see being made - hot dogs and rules!  Just sayin' . . . . .  

 

Edited April 9, 2020 by GeeTen