USA: TTB proposes sweeping new regulations on alcohol beverages

On Friday, January 17, 2025, the United States’ federal Alcohol and Tobacco Tax and Trade Bureau (TTB) published two important Notices of Proposed Rulemaking (NPRMs) proposing changes for the labeling of alcohol beverages, including beer and “malt beverages”—the Federal Alcohol Labeling Act term for beer under the TTB’s regulatory authority. The Brewers Association anticipated both rulemakings and submitted written comments and provided testimony on the subjects covered by them last year, Brewers Association reported.

The two NPRMs, if they become law, would make substantial changes to the labeling of products regulated by the TTB. While Brewers Association staff continues to analyze the draft regulations, what follows summarizes the broad outlines of what the TTB has proposed.

One NPRM addresses what it calls “alcohol facts” statements on alcohol beverage labels, and it would mandated nutrient disclosures on most beers (those that qualify as “malt beverages”) and mandate alcohol content statements, covered in the next section, for all beer.

Under the proposal, alcohol beverages regulated under the TTB’s Federal Alcohol Administration Act (“FAA Act”) authority would have to bear an alcohol facts statement. That statement would disclose:

• Serving size
• Number of servings per container
• Alcohol content
• Number of ounces of pure alcohol per serving
• Calories per serving
• Number of grams per serving of carbohydrates, fat, and protein

Because the FAA Act definition of malt beverage does not include fermented grain products not made with malted barley or not made with hops, many hard seltzer products would not be subject to these rules. As products subject to the primary labeling jurisdiction of the federal Food & Drug Administration (FDA), however, such hard seltzer products already must disclose nutritional information as mandated by FDA regulations. Similarly, wines below 7% alcohol by volume (ABV), a category that includes many hard cider products, would continue to be subject to the FDA’s nutritional labeling regulations under the proposal.

Another implication mandating regulations under the FAA Act effectively exempts products not moving in interstate or foreign commerce. The FAA Act passed under Congress’ Commerce Clause power at a time when that power was construed narrowly. As a result, a malt beverage produced in a state that will not cross state lines will not be subject to the new alcohol facts requirement, except for alcohol content (see next section).

On serving sizes, the TTB proposes to establish 12 ounces as the standard serving size for malt beverages below 7% ABV. A serving size of five ounces is proposed for malt beverages above 7% ABV but not more than 16% ABV. The proposal includes even smaller serving sizes (2.5-ounce and 1.5-ounce) for very strong malt beverages.

Where a bottle or can contain between 100% and 200% of the TTB established serving size, the label would have to list the alcohol facts on a per-container (not per serving) basis. So, for example, a 6% ABV beer in a 16-ounce can would need to list its alcohol content, calories, and other information per 16 ounces. Bottles or cans containing 200% or more of the established serving size could list serving sizes as part of a multi-serve container.

One of the most novel proposals would require statement of total pure alcohol per serving. This would need to be stated to the nearest tenth of an ounce.

The alcohol facts calorie statement would need to list calories to the nearest 10 calories in the case of products containing over 50 calories per serving (i.e., most beers). For products containing 50 calories or less per serving, the listing would be to the nearest five calories. A plus or minus 20% tolerance would apply when measuring calories.

The proposed regulations would require carbohydrate and protein statements in grams, rounded to the nearest gram. Special rules would apply when those measures are extremely small. As with calories, a 20% tolerance up or down would apply.

In the case of fat (rarely present in most malt beverages), the statement would need to be in grams. Fat disclosures would round to the nearest half gram for products with less than five grams of fat per serving, and to the nearest gram for products that contain five grams per serving or more. Again, a plus or minus 20% tolerance would apply.

The regulations provide two options for the alcohol facts information: a panel or “linear display.” The panel would look similar to those commonly found on products whose labels fall under the primary labeling authority of the FDA. The linear display could place the information in lines of text. Even a linear display, however, would need to be set apart, surrounded by a text box, bold certain information, and meet minimum size requirements.

As noted above, the proposed regulations would mandate alcohol content information within each label’s alcohol facts statement. Alcohol content disclosures would be rounded to the nearest tenth of a percent, with a plus or minus one percent ABV tolerance for products containing more than 0.5% ABV.

The one percent tolerance rule, however, would not apply when it comes to determining what products qualify as “non-alcoholic” (less than 0.5% ABV) or “alcohol free.” In determining whether products meet those thresholds, the tolerance would not apply.

The proposed regulations also would retain a number of features from the TTB’s existing alcohol content regulations. Among them are the size limitations prohibiting an alcohol content statement appearing in font of larger than four millimeters (mm) for packages over 40 ounces, or a font larger than three mm for packages of 40 ounces or less.

A curious feature is the TTB’s decision to continue not recognizing “ABV” as an acceptable term to denote alcohol content. Instead, the TTB retained the familiar existing rules permitting “alcohol percentage by volume” or “alc/vol.”

Perhaps most significantly, the proposed alcohol content rules would not apply only to products within the TTB’s FAA Act jurisdiction over malt beverages. Most of the proposed new alcohol content regulations appear in the TTB’s FAA Act regulations, such as requiring alcohol content within the new alcohol facts statement. But the TTB also invokes its labeling authority arising under the Internal Revenue Code to mandate alcohol content labeling on kegs and containers of beer falling outside of the TTB’s FAA Act authority.

The implications of this jurisdictional stretch would require alcohol content even on beers that never enter interstate or foreign commerce; i.e., do not cross state lines. Moreover, it would apply to fermented hard seltzer products falling within the FDA’s primary labeling authority.

The TTB’s second NPRM of the day would impose mandatory label disclosure requirements for the nine “major” allergens identified as such by Congress. Promulgated under the TTB’s FAA Act labeling authority, these would apply to malt beverages, as well as most wine and all distilled spirits. Alcohol beverages regulated under the FDA’s primary labeling authority, such as fermented sugar hard seltzers and wines below 7% ABV, are already subject to mandatory allergen labeling under FDA regulations.

The nine major allergens according to the federal government are:

• Milk
• Eggs
• Fish
• Crustacean shellfish
• Tree nuts
• Wheat
• Peanuts
• Soybeans
• Sesame

The proposed disclosure would state: “Contains Major Food Allergen(s):”, followed by a list of the allergens contained in the product. The proposed regulations explicitly require the listing of allergens used as “incidental additives”—those that are used during processing and do not remain in the final product. In the case of such ingredients, however, the label disclosure may include a parenthetical statement indicating that the allergen in question is used as, for example, a processing aid.

The TTB rejected calls to create a separate compliance rule or higher tolerances for small producers or low-batch products. In some cases (e.g., alcohol content), however, tolerances were increased for all producers and products. The proposed rules also offer up several measures the TTB contends will ease the burden on small businesses.

Perhaps most significantly, the TTB proposes a five-year phase-in period for the new regulations. This would likely allow most producers to use up existing label and can inventories before any new rules become mandatory.

In addition, the proposal would permit label changes mandated by the new regulations to be made without the need for a new federal Certificate of Label Approval (COLA).

The NPRMs give the industry 90 days from their date of publication (expected on January 17, 2025) to comment on the proposed rules. In the next several weeks the Brewers Association will formulate plans to respond, building on the written comments and testimony submitted to the TTB on these subjects in 2024.

Although it has not fully formulated its position, the Brewers Association said it is extremely disappointed with some aspects of the NPRMs. In comments and in submitting testimony in 2024, the Association and most other trade associations advocated for a rule allowing information disclosures via an on-label QR Code—an approach embraced by the European Union in its recent wine labeling regulations. The TTB rejects the QR Code solution, implicitly favoring large companies who can spread the cost of new labels or cans across many units.

“We will work hard to ensure that the voices of small and independent brewers are heard in order to protect our members’ interests,” Brewers Association said.

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