March 28, 2024
Amy R. Greenberg, Director
Regulations and Rulings Division
Alcohol Tobacco and Trade Bureau (TTB)
1310 G St NW Ste 400
Washington, DC 20005
Re: Comments for TTB Notice No. 232: Docket No.TTB-2024-0002, Labeling and Advertising of Wine, Distilled Spirits, and Malt Beverages with Alcohol Content, Nutritional Information, Major Food Allergens, and Ingredients
Dear Director Greenberg:
I am writing on behalf of the American Craft Spirits Association (ACSA) in response to Alcohol Tobacco and Trade Bureau (TTB) Docket No. TTB-2024-0002, Notice No.232, which requests input to inform rulemaking by the agency around alcohol labeling and advertising. We appreciate this opportunity, in additional to our oral comments offered last month via past-president Rebecca Harris [Catoctin Creek Distillery], to offer the thoughts and realities of our small craft spirits sector.
ACSA is the only registered national nonprofit trade group dedicated to representing the U.S. craft spirits industry. Our members are independent small businesses, averaging around 10 full-time employees with 89% producing fewer than 70,000 units total of all their products in 2022 according to the Craft Spirits Data Project © (2023). We recognize the challenges TTB faces in regulating both multinational corporations and the small distilleries our organization represents regarding this issue, and we welcome this chance to share direct member feedback.
1. Do consumers believe that they are adequately informed by the information currently provided on alcohol beverage labels?
When surveyed, a vast majority of our small business respondents (90%) do not provide nutritional or ingredient information to consumers on labels under the voluntary guidelines, and report that they receive few, if any, requests from consumers for this information about their bottled spirits products produced under TTB’s standards of identity. A lack of inquiry suggests consumers have the information they need.
These same businesses report that their ready-to-drink cocktails have more ingredients added post-distillation, and receive more requests for this information from consumers, both for nutritional information and major allergens. Many members do disclose this information in person, per the voluntary guidelines, or through information available on their website.
2. Is alcohol content per serving, and nutritional information (such as calories, carbohydrates, protein, and fat) per serving important for consumers in deciding whether to purchase or consume a particular alcohol beverage? Would a full list of ingredients, and/or major food allergens, be important information for consumers in making their purchasing or consumption decisions? In what ways would this information be useful, and in what ways could it be misleading? Is some of this information more important than others?
General information on calories for specific spirits are commonly available through internet searches. Companies marketing to consumers who are particularly concerned with calories and fat have the ability to voluntarily label their products with this information, as well as information regarding major food allergens.
In the case of distilled spirits, there is also the risk that requiring an ingredients list, including fermented ingredients, could mislead or confuse customers because ingredients used in the fermentation stage do not in fact transfer into the finished product, but are, apart from ethyl alcohol and certain non-nutritive congeners, completely removed by the distillation process. For example, whiskies distilled from grains do not contain those grains in the final product and can even be labeled as gluten-free per FDA guidelines. If companies are adding ingredients, including any major food allergen ingredients, after the distillation process, this may be a more appropriate place to look at requiring disclosure and many small distillers already do so on the labels or on their websites.
3. What types of per-serving nutritional information, such as calories, carbohydrates, protein, and fat, should be included?
In general, spirits and alcohol are non-nutritive. Requiring nutrition labeling for distilled spirits products could mislead or confuse consumers by implying that spirits have nutritive value. Therefore, nutritional label requirements are inappropriate for distilled spirits. However, if some form of nutritional labeling is required, then it should be limited to macronutrients only, such as calories, carbohydrates, protein, and fats to limit the potential for consumer confusion.
4. Would requiring this information on labels be expected to increase the cost of the products and, if so, by how much? To what extent are businesses already following voluntary guidelines for this information? Are there alternative ways of providing the information, for example by allowing information to be provided through a website using a quick response code (QR code) or website address on the label?
The first cost incurred would be any nutritional testing of products and design of these labels, which could run as high as $2000 per product, depending on TTB’s requirements for supportive documentation. Small producers often keep their customers engaged and encourage repeat visits through dozens of special releases and new innovative products, which may only amount to 100-200 bottles each. Such a cost can easily be absorbed over the sale of millions of units but is a significant expense for a limited release product of 200 bottles. This becomes a strong disincentive to innovate for a small business.
Labels are one of the largest expenses small beverage producers incur. Because of the smaller numbers of labels ordered, these expenses are considerably higher for small companies than for the larger producers. A QR code or website address on the label would be an option which would make it possible for small producers to provide any mandated nutritional information to customers, without a major and costly redesign to labels and the associated fixed costs of new tooling to produce them.
5. How would any new mandatory labeling requirements particularly affect small businesses and new businesses entering the marketplace?
We know that this new requirement which TTB is proposing will significantly and particularly impact costs to small spirits producers. At a time when the companies in the distribution and retail tiers are consolidating rapidly, and access to customers is particularly difficult for small, independent distilleries, we believe it would be a serious mistake to create another mandate which disproportionately affects small businesses. The current TTB system of regulation treats the smallest of distilleries the same as the largest, yet the costs of compliance for those small distilleries are vastly disproportionate to larger, multinational and industrial manufacturers.
If the TTB feels that a mandate for this labeling in warranted, we strongly suggest that there be an exemption for small businesses as per 21 CFR 101.9(j)(1) and 101.9(j)(18), where FDA has created an exemption for small businesses in the nutritional label requirements for food.
If this were the case, FDA deems the nutrition labeling exemptions for low-volume products found in 21 CFR 101.9(j)(18) and 21 CFR 101.36(h)(2) apply if “the person claiming the exemption employs fewer than an average of 100 full-time equivalent employees and fewer than 100,000 units of that product are sold in the United States in a 12-month period. For these exemptions, a notice must be filed annually with FDA.
If a person is not an importer, and has fewer than 10 full-time equivalent employees, that person does not have to file a notice for any food product with annual sales of fewer than 10,000 total units.”
We would support nutritional labeling requirements which included such an exemption. Unlike food producers, a large proportion of most small beverage producers’ employees work in tasting rooms as opposed to production operations. We therefore advocate specifying full-time equivalent production employees to be consistent with the size of small food businesses.
We appreciate TTB’s attention to this issue and its commitment to listening to the perspectives of small businesses who will be impacted disproportionally by the decisions made. Our small business members are directly responsive to their customers, and a supermajority of our survey responses indicate that keeping consumers informed can be accomplished on a voluntary basis through exemptions for small business, even if mandates are required for large manufacturers.
Sincerely,
Margie A. S. Lehrman, CEO
