TTB Increases Flexibility for Calorie Labeling and Advertising in Wine, Spirits, and Malt Beverages

On September 28, 2020, the U.S. Tax and Trade Bureau (TTB) issued TTB Ruling 2020-1 and TTB Procedure 2020-1 expanding the tolerance range for voluntary calorie statements in labeling and advertising alcohol beverages – making the TTB’s rules more consistent with the food labeling requirements of the US Food and Drug Administration (FDA).

The TTB permits alcohol beverage industry members to make voluntary nutrient content statements – such as calorie or carbohydrate content – on their products’ labels and advertisements, provided such statements are truthful and not misleading. The TTB periodically verifies nutrient content claims by analyzing samples of alcohol beverage products. In analyzing such claims, the TTB has certain “tolerance ranges” to allow for normal production and analytical variables, while continuing to ensure that the labeling or advertising does not mislead the consumer.

The new rules expand the TTB’s tolerance range for calorie content statements. Such statements will now be considered acceptable as long as the TTB’s analysis determines that the calorie content of the products are either:

  • Within a “reasonable range” below the labeled or advertised amount (within good manufacturing practice limitations); or
  • Not more than 20% above the labeled or advertised amount.

Previously, the TTB tolerance range for calorie content claims was only a range of plus 5 or minus 10 calories of the labeled or advertised amount. The new rules have no impact on the TTB’s tolerance ranges for carbohydrates and fats (20% tolerance for understatements) and proteins (20% tolerance for overstatements).

Importantly, the TTB clarified that industry members may use a number of reasonable methods to support their calorie content claims. Lab analyses of each product batch are not required; industry members may instead rely on databases and “typical value” charts. Regardless of the method used to support their calorie content claims, industry members remain responsible for ensuring that their claims are reliable, accurate, and fall within the tolerance ranges set by the TTB.

The new rules are a boon for both producers and restaurants. Producers now have greater flexibility for making calorie content claims on their labels and advertisements, if they choose to do so. Restaurants that are subject to the FDA’s menu labeling requirements also often rely on the nutrient content claims of alcohol beverage products, and the new rules may incentivize producers to provide calorie statements on more alcohol beverage products.

TTB Ruling 2020-1 is available here. TTB Procedure 2020-1 is available here. For questions regarding the above or general labeling questions, please contact  Bahaneh Hobel (Partner) or Michael Mercurio (Law Clerk).

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