Counting calories: TTB rulings provide more flexibility for alcohol labeling

In the past month, the Alcohol and Tobacco Tax and Trade Bureau (TTB) has issued two new labeling and advertising requirements for wine, distilled spirits, and malt beverages. The first pertains to calorie count, the second to gluten-free claims. Both are voluntary and allow greater flexibility for producers, sellers, and importers of alcoholic beverages.

Producers and sellers of beer, wine, and spirits are currently permitted — but not required — to include nutritional information (e.g., calorie and carbohydrate counts) on their labels. Under a 2004 TTB ruling, businesses that provide this information were required to test each batch to verify the accuracy of the nutritional information. This is extremely burdensome, especially for wineries: The nutritional content of wine is inherently more variable than that of beer or spirits because the raw materials are highly variable.

In late September 2020, TTB updated its guidelines for nutrient content statements, essentially eliminating the requirement to test each batch. A few weeks later, TTB issued a ruling allowing for greater flexibility for voluntary gluten-free claims on labels or in ads. Read on for details.

In April 2004, TTB held that calorie and carbohydrate representations would be misleading unless they included a statement of average analysis listing the number of calories and grams of carbohydrates, fat, and protein contained in a single serving of the product. 

TTB expanded its position in July 2004 by providing the following tolerance ranges for labels and advertisements:

• A caloric content of +5 or -10 calories (e.g., a label showing 96 calories would be acceptable if TTB analysis found a caloric content between 86 and 101 calories)

• A carbohydrate and fat content of no more than 20% above the labeled or advertised amount (e.g., a label showing 4.0 grams of carbohydrates would be acceptable if TTB analysis found a carbohydrate content of not more than 4.8 grams)

• A protein content of no more than 20% below the labeled or advertised amount (e.g., a label showing 1.0 gram protein would be acceptable if TTB analysis found a protein content of not less than 0.8 gram)

Additional guidelines for industry members looking to provide voluntary nutrient content statements were issued in 2013. These:

• Permitted the use of optional “Serving Facts statements” on labels in advertisements
• Held that Serving Facts statements must be “truthful, accurate, specific, and non-misleading”
• Applied the 2004 tolerance ranges to Serving Facts statements

Labeling flexibility enhanced for calorie statements in 2020

In September 2020, TTB expanded the 2004 tolerances for voluntary calorie statements on labels and ads for distilled spirits, malt beverages, and wine to be “more consistent” with the Food and Drug Administration’s (FDA) food labeling regulations. 

TTB Ruling 2020-1 holds that caloric content cannot be more than 20% above the labeled or advertised amount. Thus, a label showing 100 calories per serving would be acceptable if TTB analysis found a calorie content of not more than 120 calories per serving. This provides much more flexibility, as previously, caloric content had to be within +5 or -10 calories

Tolerance ranges for carbohydrate, fat, and protein content remain unchanged from the 2004 levels: Carbohydrate and fat content may not be more than 20% above the labeled or advertised amount, while protein content may not be more than 20% below the labeled or advertised amount. 

The new guidelines afford greater flexibility for industry members who provide voluntary nutrient content statements by allowing them to use databases and typical value charts to support their claims. What matters is that they can support them. TTB hopes this will encourage broader use of voluntary nutrient content statements in the labeling and advertising of alcoholic beverages.

For wineries, the key takeaway is that the new expanded tolerances eliminate the batch testing requirement for most wine. Industry members may now use a number of reasonable methods to support caloric content claims, provided the methods are accurate and reliable. According to Wine Institute, the updated guidelines “will significantly reduce the burden on wineries that choose to voluntarily provide nutritional information.” 

TTB has also updated its policy on gluten content statements for labels and advertisements of wines, distilled spirits, and malt beverages regulated under the Federal Alcohol Administration Act (FAA Act).

Back in 2014, TTB Ruling 2014-2 held that the term “gluten-free” could be used on labels and in advertisements only if the product would be entitled to make a gluten-free label claim under the standards set forth in FDA regulations 21 CFR 101.91. It’s been difficult to do this for alcohol products produced from grain because no recognized standards or methodologies can ensure these products contain less than 20 parts per million (ppm) intact gluten, as required by FDA. 

Now the FDA regulations have been updated. As of October 13, 2020, 21 CFR 101.91(c)(2)–(4) provide that when a scientifically valid method isn’t available because the food is fermented or hydrolyzed, manufacturers wishing to make a “gluten-free” claim must maintain records demonstrating that the product met FDA’s definition of gluten-free before fermentation or hydrolysis, and that measures were taken to prevent cross-contact with gluten during manufacturing.

For distilled products, FDA finds that good distillation practices remove all gluten. Furthermore, a scientifically valid analytical method (protein testing) can now reliably detect the presence or absence of gluten.

Given FDA’s new regulations, TTB has revised its policy to allow greater flexibility for industry members wishing to make voluntary gluten-free claims on labels or in ads for spirits distilled from gluten-containing grains. 

There are three main points to the TTB Ruling 2020-2:

• The term “gluten-free” may be used if it meets FDA’s “gluten-free” labeling claim.

• The term “gluten-free” may be used for distilled spirits distilled from gluten-containing grains so long as manufacturers follow good manufacturing practices that prevent the introduction of any gluten-containing material into the final product.

• Labels and advertisements for products fermented from gluten-containing grains may claim the product was crafted, processed, or treated to remove gluten, provided an appropriate qualifying statement is included and necessary documentation is available to substantiate the claim.

This ruling doesn’t change requirements for approved labels or TTB’s policy regarding malt beverages fermented from gluten-containing grains.

Products that don’t include any ingredients containing gluten, such as wines fermented from grapes and spirits distilled from potatoes, may continue to make “gluten-free” claims as allowed by FDA regulation 21 CFR 101.91. TTB expects manufacturers making a gluten-free claim to take appropriate measures to prevent cross-contact with gluten-containing grains during production, processing, storage, or other handling practices.

Need help with labeling? Avalara for Beverage Alcohol includes options for filing COLAs, filing state product registrations, and revising and renewing product registrations.