![](media/image1.jpeg){width="1.35in"
height="1.3597222222222223in"}**NATIONAL CONSUMERS LEAGUE**

> 1701 K Street, NW, Suite 1200, Washington, DC 20006

**[PHONE]{.smallcaps}** (202) 835-3323 **FAX** (202) 835-0747
[***www.nclnet.org***](http://www.nclnet.org/)

November 14, 2023

Chief, Regulations and Procedures Division

Alcohol and Tobacco Tax and Trade Bureau

Attn: Notice No. 41

P.O. Box 14412

Washington, DC 20044-4412

Re: [Notice No. 41]{.underline}

The **National Consumers League (NCL)** is pleased to have this
opportunity to submit comments to the Alcohol and Tobacco Tax and Trade
Bureau (TTB) regarding the advance notice of proposed rulemaking on
alcohol beverage labeling and advertising. Joining the League in support
of these comments are the **American Public Health Association, the
American School Health Association, the Center for Communications,
Health and the Environment, Consumer Action, Consumers Coalition of
California, Maine Association of Prevention Programs, Maryland Consumer
Rights Coalition, Virginia Citizens Consumer Council, and Judy Sandeen,
Director of Campus Health Services at Hastings College.**

NCL is a private, nonprofit consumer education and advocacy group
representing consumers in the marketplace and in the workplace. Founded
in 1899, we are the nation's oldest consumer organization. NCL has a
longstanding interest in alcohol beverage labeling and advertising and
was the lead group on the petition calling for a mandatory "Alcohol
Facts" panel on the labels of all alcoholic beverages regulated by
TTB.[^1]

NCL and the groups joining us on these comments commend TTB for
undertaking a comprehensive reconsideration of labeling and advertising
requirements for alcohol beverages. We have been a vocal critic of the
status quo, which we believe provides consumers with very little useful
information. Even the most basic information about alcohol beverages \--
their alcohol content \-- is not required to be provided on the labels
of most alcohol beverage products. Only distilled spirits, wines
containing more than 14% alcohol by volume, and flavored malt beverages
are legally required to provide any information about alcohol content on
the label.

We urge TTB to adopt a uniform, mandatory labeling regime for all
alcoholic beverages that includes, at a minimum, the following basic
information:

-   Serving size;

-   Amount of alcohol per serving;

-   Number of calories per serving;

-   Percent alcohol by volume;

-   The definition of a "standard drink";

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-   The number of standard drinks per container;

-   The advice on alcohol consumption in the current edition of the
    *Dietary Guidelines for Americans*; and

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-   An ingredients declaration listing each ingredient by its common or
    usual name and identifying any major food allergens present in the
    product.

### General Principles

In undertaking this broad review of the labeling and advertising
requirements for beverage alcohol, we think TTB should be guided by the
following general principles:

-   As a matter of public health, consumers should be given more
    information than is currently required to appear on the labels of
    alcohol beverages. Just as other consumable products (*e.g*.,
    conventional foods, dietary supplements, drugs) are required to
    provide a basic minimum of information needed by consumers to make
    informed purchasing decisions, alcohol beverage labels should also
    be required to provide certain [mandatory]{.underline} information.
    This label information should be sufficient for consumers to follow
    the advice in the *Dietary Guidelines for Americans* on alcohol
    consumption (*i.e*., if you choose to drink, consume no more than
    two drinks per day for men, one drink per day for women) and
    maintenance of a healthy weight.

-   Alcohol is alcohol, whether it is in beer, wine, or distilled
    spirits. Any type of alcohol product can be consumed moderately and
    responsibly, or abused. Therefore, mandatory label information
    should be [uniform]{.underline} for all three product categories.

-   This information should be presented in one place on the label in a
    [simple, easy-to-read]{.underline} [format]{.underline}. If a
    manufacturer wishes to voluntarily provide consumers with more
    information than required, it should be allowed to do so, provided
    the information is truthful and not misleading.

> Our specific comments follow.

### Specific Comments

1.  **TTB should mandate an Alcohol Facts panel on labels of all alcohol
    beverage products.**

As we requested in our petition of December 16, 2003, we urge TTB to
require an Alcohol Facts panel on the labels of [all]{.underline}
alcohol beverage products regulated by TTB with more than 0.5 percent
ethyl alcohol content. Alcohol beverages currently are the only major
category of consumable product that is not required to carry label
information summarizing the basic characteristics of the product
important to consumers. Consequently, the labels of alcohol beverage
products do not provide consumers with the information they need to
follow the *Dietary Guidelines*' advice on alcohol consumption.[^2]

a.  The Alcohol Facts panel should include important product information
    that consumers need to make an informed purchasing decision.

We believe the mandatory Alcohol Facts panel should be required to
provide a summary of important product information including the
following:

1)  The serving size (*i.e*., 12 fluid ounces (fl oz) for beer, 5 fl oz
    for wine, 1.5 fl oz for distilled spirits)[^3];

2)  The number of calories per serving;

3)  The amount of alcohol (in fl oz) per serving;

4)  The percentage alcohol by volume;

5)  The definition of a "standard drink" (*i.e*., "One standard drink
    contains 0.6 fl oz of alcohol")[^4];

6)  The number of standard drinks per container; and

7)  The *Dietary Guidelines'* advice on moderate drinking (*i.e*., "U.S.
    *Dietary Guidelines* recommend moderate drinking: no more than two
    drinks per day for men, one drink per day for women").

We believe it would also be helpful to some consumers to include
information about the amount of fat, carbohydrate, and protein (in
grams) per serving. However, we believe this information is less
important and should be made optional.

It is important that this information all appear in one location on the
product label for ease of reference. It is not important whether this
label panel is denominated "Alcohol Facts," "Serving Facts," or some
other appropriate heading. The TTB regulations should include
appropriate graphic requirements to ensure that this information is
presented in an easy-to-read format.

Alternatives to the "Alcohol Facts" panel on the label (*e.g*., listing
of a telephone number or website on the label where the consumer can
obtain this information) are not acceptable. Alcohol and calorie
information may influence a consumer's purchasing decision, and so must
be available to consumers at point of purchase. Alcohol and calorie
information are also intended to influence consumption decisions. Since
consumers often drink alcohol beverages immediately after purchasing
them, there is no interval between purchase and consumption during which
consumers can obtain this information from the manufacturer. If it is to
be useful, the information must be available to consumers at the point
of purchase.

a.  An ingredients declaration and allergen information should be
    required on labels of all alcohol beverages.

We believe that the TTB regulations should also require an ingredients
declaration to be presented on the label in close proximity to the
Alcohol Facts panel. Almost all other food products are required to list
the ingredients used to make the product. Alcoholic beverages, which are
currently required to declare only a small number of ingredients
(*e.g*., sulfites, FD&C Yellow No. 5), stand out as an exception. For a
consumable product like beverage alcohol, a list of the ingredients used
to make the product is basic information that is likely to affect
purchasing decisions. It is especially important that major food
allergens (*i.e*., tree nuts, peanuts, milk, eggs, wheat, soybeans,
fish, and crustacean shellfish) be listed when present in an alcohol
beverage product.

b.  **There are strong public health policy arguments for requiring
    Alcohol Facts and ingredient information.**

There are strong public health justifications for mandating an Alcohol
Facts label panel and ingredients declaration on all beverage alcohol
products. [Better information about alcohol content per serving is
especially important and should be given the highest priority because of
the many public health problems caused by excessive consumption of
alcohol]{.underline}**.** Label information should make it possible for
consumers to estimate their alcohol consumption, both in terms of amount
of alcohol and number of drinks, with a reasonable degree of accuracy.
Improved label information about alcohol content would make it much
easier for consumers to make responsible drinking decisions. The public
health benefits and the health benefits to individual consumers, from
such improved labeling are obvious. They include reduced alcohol abuse,
reduced drunk driving, and a reduction in the many diseases attributable
to excessive alcohol consumption.

It is essential that consumers be able to determine from the label how
many standard drinks they are consuming. The definition of a "standard
drink" is recognized throughout the federal government and public health
community.[^5] The *Dietary Guidelines'* advice on moderate alcohol
consumption is phrased in terms of number of drinks consumed per day.
Moreover, most consumers measure their consumption of alcohol in number
of drinks. Yet, consumers cannot accurately determine the number of
drinks they are consuming, and therefore cannot follow the *Dietary
Guidelines*' advice, using current label information. By requiring
labels to provide the definition of a "standard drink," the number of
drinks per container, and the amount of alcohol per serving, TTB would
make it possible for consumers to determine the number of drinks per
serving and per container for any product. With this information,
consumers would be able to count the number of drinks they are
consuming.

Consumers also need information on the alcoholic strength of a given
product. The alcohol content of a beverage is a function of both serving
size and percent alcohol by volume. Providing the amount of alcohol per
serving would express alcohol content in a single number and thereby
enable consumers to make comparisons between different products based on
their alcohol content.

Calorie information would help consumers maintain their weight within a
healthy range consistent with the *Dietary Guidelines'* advice. Alcohol
is a significant source of calories.[^6] As a recent FDA report makes
clear, maintaining a healthy weight is a matter of counting calories and
balancing calories consumed and calories expended.[^7] Given the
national obesity epidemic, it makes no sense that most alcohol beverage
labels contain no information about calories.[^8]

Ingredient and allergen information would help consumers with food
allergies and sensitivities avoid ingredients that trigger allergic and
other reactions. The roughly seven million Americans with food allergies
look to a product's ingredients declaration to see whether the product
contains the allergen they must avoid. Alcohol beverages may contain
major food allergens such as milk, eggs, and tree nuts. Under the Food
Allergen Labeling and Consumer Protection Act of 2004, labels of
FDA-regulated food products will be required to clearly identify major
food allergens beginning January 1, 2006. As of that date, consumers
with food allergies will expect to find allergen information on labels
of alcohol beverage products as well. Many consumers are not aware that
different types of food products are regulated by different federal
agencies. If TTB does not implement allergen labeling until completion
of this rulemaking, these consumers will be put at serious risk.

Requiring Alcohol Facts and ingredient lists on all alcohol beverage
labels would also serve the public policy interest in consistency.
Similar products should be labeled similarly. We see no reason why
alcohol content information should be required on the labels of some
alcohol beverages (*e.g*., distilled spirits, flavored malt beverages,
wines with more than 14% alcohol by volume) but not others. An Alcohol
Facts panel and ingredient listing requirement would promote consistency
by establishing uniform labeling requirements across product categories.
It would also promote consistency among federal agencies. Currently,
wines and hard ciders with less than 7 percent alcohol by volume
(*e.g*., wine coolers) are regulated by the FDA and required to bear
full nutrition and ingredient labeling.[^9] On the other hand, alcohol
beverages regulated by TTB are not required to present any calorie or
nutrition information unless they make a nutritional claim (*e.g*.,
"lite") and are not required to bear ingredient labeling. It is
difficult to understand why Requiring an Alcohol Facts panel and
ingredients declaration on all alcohol beverages regulated by TTB, while
not bridging the gap completely, would bring label information for
FDA-regulated wines and TTB-regulated alcohol beverages much closer
together.

c.  TTB has the statutory authority and, we believe, a statutory mandate
    to require this information on labels of alcohol beverages.

The Federal Alcohol Administration (FAA) Act requires that labels of
alcohol beverages provide "adequate information" on the identity,
quality, and alcohol content of regulated products.[^10] The FAA Act's
legislative history makes clear that Congress intended that alcoholic
beverage labels provide consumers with useful information about the
product's content and important characteristics:

Those regulations were intended to insure that the purchaser should get
what he

thought he was getting, that representations both in labels and in
advertising should

be honest and straightforward and truthful. They should not be confined
to prohibitions

of falsity, but they should also provide for the information of the
consumer, that he

should be told what was in the bottle, and *all the important factors
which were of*

*interest to him about what was in the bottle*.[^11]

The courts have accepted this view of Congress' intent in passing the
FAA Act.[^12]

We believe that the existing TTB labeling regulations fall significantly
short of this statutory mandate to provide "adequate information" about
the identity, quality, and alcohol content of alcohol beverage products.
At best, TTB's regulations reflect seriously outdated notions of what
constitutes adequate information about identity, quality, and alcohol
content.

With regard to alcohol content, adequate information is information that
enables a consumer to determine how many standard drinks he or she is
consuming, so that consumers can follow the *Dietary Guidelines'* advice
on moderate drinking. With regard to quality, adequate information
includes number of calories per serving, so that consumers can adhere to
the *Dietary Guidelines'* advice on maintaining a healthy weight. For
any product that is a significant source of calories, the number of
calories per serving is important information that is likely to affect
the purchasing decisions of many consumers. Similarly, for any product
that consumers ingest, adequate information should include the product's
ingredients. Consumers with food allergens need to know whether an
alcohol beverage contains any major food allergens. In addition,
Congress has specifically directed TTB to work with the FDA to develop
allergen labeling requirements for alcohol beverages.[^13]

The FAA Act also prohibits label statements that are false or
misleading.[^14] In our view, however, the current requirements often
result in labels that are potentially misleading. For example, in some
states, beer labels list alcohol as percent *by w*eight, making beer
seem deceptively less intoxicating than wine and spirits, which must
list alcohol as percent *by volume.* By their nature, the disparities in
labeling requirements for beer, wine, and spirits are confusing to
consumers.

d.  **Consumers want more information on labels of alcohol beverages.**

Consumer research shows overwhelming support for improved labeling of
alcohol beverages. For example, polling by the Global Strategies Group
conducted for the Center for Science in the Public Interest found that
65% strongly favor (and 89% support) labeling of calorie content; 66%
strongly favor (and 91% support) ingredient labeling; 62% strongly favor
(and 84% support) serving size information; and 77% strongly favor (and
94% support) alcohol content labeling for alcohol beverages. Another
telephone poll conducted by Westhill Partners and the National Journal's
Hotline in spring 2005 found strong support -- 83% in favor -- for
voluntary labeling of alcohol content per serving.

2.  **Pending completion of this rulemaking, there is no reason why TTB
    should not permit voluntary use of a Serving Facts panel in
    labeling.**

In 2004, TTB issued specifications for a Serving Facts panel that
manufacturers could voluntarily use in labeling and advertising of
alcohol beverages. The Serving Facts panel was required to include the
following information:

-   Serving size (in fl oz);

-   Servings per container;

-   For each serving:

    -   Alcohol (in fl oz to the nearest tenth of an oz);

    -   Calories;

    -   Fat (in grams);

    -   Carbohydrates (in grams); and

    -   Protein (in grams).

Fat and carbohydrates would be calculated in accordance with TTB
Procedure 2004-1.[^15]

TTB now states that pending completion of this rulemaking, the agency
does not intend to issue certificates of label approval that bear this
Serving Facts panel. The effect of this decision is that consumers
likely will have to wait several years before they will see adequate
information on alcohol beverage labels. We urge TTB to reconsider this
decision. There is no reason why the Serving Facts panel described by
TTB in last year's specifications should not be allowed to appear on
labels of wine, distilled spirits, and beer now. We can see no potential
for such basic information (*e.g*., serving size, calories per serving,
alcohol per serving) to mislead consumers. TTB had already removed from
the Serving Facts panel any information that might possibly be perceived
as controversial. Just as TTB now permits use of carb claims pursuant to
its interim policy set forth in Ruling 2004-1 pending completion of this
rulemaking, TTB should also permit voluntary use of the Serving Facts
panel.

An effective prohibition on the use of the Serving Facts panel might
raise First Amendment concerns. Under relevant Supreme Court precedents,
the government may not restrict commercial speech that is truthful and
non-misleading unless the government has a substantial interest in doing
so, the restriction directly advances that interest, and the restriction
is no more extensive than is necessary to serve that interest.[^16] We
question whether TTB's action could satisfy this test of
constitutionality. At least one federal court has held that makers of
alcohol beverages have a First Amendment right to disclose information
on calorie and alcohol content.[^17]

3.  **We support TTB's existing interim policy defining "low carb"
    claims, but we believe TTB should require some minimum percentage
    reduction in carbohydrates to qualify for a "reduced carb" claim.**

We support TTB's existing interim policy on carb claims, set forth in
TTB Ruling 2004-1 and TTB Procedure 2004-1. Under that policy, the claim
"low carb" may be made for products containing no more than 7 grams (g)
of carbohydrates per standard serving (*i.e*., per 12 fl oz of beer, 5
fl oz of wine, or 1.5 fl oz of spirits), and the claim "reduced carb"
may be made for products that contain no more than 7 g of carbs per
standard serving and are lower in carbs than the regular version of a
comparable product on the market. Products bearing a carb claim must
include a statement of average analysis on the label or in the
advertisement making the carb claim. The interim policy does not permit
use of the terms "net carbs" or "effective carbs."

We believe it is important that TTB and its sister agencies define the
claims "low carb" and "reduced carb" so that consumers know what these
claims mean. We commend TTB for acting promptly to define these terms on
an interim basis rather than waiting for completion of a rulemaking
process. While we support the TTB definition of "low carb," we believe
that TTB should require some minimum percentage reduction in
carbohydrates to qualify for a "reduced carb" claim. Under TTB's
existing policy, it appears that any reduction in carbohydrates, even a
meaningless 1% reduction, as compared to a comparable product on the
market would enable use of the claim. We believe this creates a
potential for "reduced carb" claims that are misleading.

We understand that FDA also intends to undertake a rulemaking defining
carb claims, and we hope that FDA, TTB, and USDA will work together to
develop consistent definitions. In the meantime, TTB should continue to
enforce its interim policy as set forth in Ruling 2004-1. Products
making "low carb" or "reduced carb" label claims should be permitted to
present the Serving Facts panel on the label in lieu of a statement of
average analysis.

#### [Conclusion]{.underline}

NCL and the other organizations joining us on these comments believe
that an Alcohol Facts panel \-- including information on serving size,
alcohol content, calories, and the *Dietary Guidelines'* advice on
moderate alcohol consumption \-- is so important to consumers that it
should be mandated on all beverage alcohol labels. An ingredients
declaration and allergen information should also be required. We urge
TTB to expedite this rulemaking. In the meantime, we urge TTB to permit
voluntary use of the Serving Facts panel previously proposed by TTB, or
some variation of that panel that includes alcohol content and calorie
information.

We appreciate TTB's consideration of our views.

Sincerely,

![](media/image2.jpeg){width="2.498611111111111in"
height="0.8756944444444444in"}

Linda F. Golodner

President, National Consumers League

lindag@nclnet.org

[^1]: This petition submitted by NCL and the Center for Science in the
    Public Interest and others is discussed in FDA's ANPRM. 70 Fed. Reg.
    22274, 22279 (April 29, 2005).

[^2]: The *Dietary Guidelines* are both the blueprint for federal
    nutrition policy and a summary of general nutrition recommendations
    for consumers. The Food and Drug Administration (FDA) has always
    viewed the Nutrition Facts panel on FDA-regulated food labels as an
    essential tool that enables consumers to apply the *Dietary
    Guidelines*' advice to their diets. Although the *Dietary
    Guidelines* include a separate guideline on alcohol consumption,
    labels of TTB-regulated alcohol beverage products do not provide
    consumers with sufficient information to follow that guideline's
    advice.

[^3]: There are long-established serving sizes for beer (12 fl oz), wine
    (5 fl oz), and distilled spirits (1.5 fl oz). These serving sizes
    have been established by long-standing common usage and are
    reflected in the size of a standard beer bottle (or can or mug),
    wine glass, and shot glass.

[^4]: The 2003 petition submitted by NCL and CSPI and others did not
    include a definition of "standard drink" in its proposed Alcohol
    Facts panel, but such a definition was included in TTB's proposed
    Serving Facts panel. The NCL/CSPI petition also erroneously
    identified a "standard drink" as the amount of a beverage that
    contains 0.5 fl oz of alcohol.

[^5]: *See, e.g.*, Centers for Disease Control and Prevention (CDC),
    Questions and Answers on Alcohol Consumption, available at
    <http://www.cdc.gov/alcohol/faqs/htm> ("One 12 ounce beer has about
    the same amount of alcohol as one 5 ounce glass of wine, or one 1.5
    ounce shot of liquor"); FDA, *Dietary Guidelines for Americans*,
    2005 ("Twelve fluid ounces of regular beer, 5 fluid ounces of wine,
    or 1.5 fluid ounces of 80-proof distilled spirits count as one
    drink..."); U.S. Department of Education, "Alcohol/Other Drugs Myths
    and Miconceptions Quiz, 2003 ("Can of beer=12 oz at 5% alcohol=.6
    oz; glass of wine=5 oz at 12% alcohol=.6 oz; shot of whiskey=1.5 oz
    at 40% alcohol=.6 oz...").

[^6]: According to U.S. Department of Agriculture (USDA) Handbook No.
    74, there are 7.07 calories per gram of alcohol. This compares to 4
    calories per gram for carbohydrate and protein, and 9 calories per
    gram for fat. The Dietary Guidelines state that "excessive alcohol
    consumption makes it difficult to.... maintain a healthy weight."
    U.S. Department of Agriculture, *Dietary Guidelines for Americans*,
    2005, p. 44.

[^7]: FDA, Report of the Obesity Working Group, "Calories Count," March
    12, 2004, available at
    ([http://www.cfsan.fda.gov/dms/owg-toc.html](http://www.cfsan.fda.gov/~dms/owg-toc.html)).
    FDA followed up this report with a rulemaking intended to increase
    the prominence of the calories declaration in nutrition labeling. 70
    Fed. Reg. 17,008 (April 4, 2005).

[^8]: Currently, the only TTB-regulated products required to include
    calorie information on the label are light beers that make a
    nutrition claim. BATF Ruling 80-3.

[^9]: FDA, Compliance Policy Guide § 510.450.

[^10]: 21 U.S.C. § 205(e)(2). The FAA Act provision prohibiting alcohol
    content information on labels of malt beverages (unless required by
    State law) was held unconstitutional by the Supreme Court. *Rubin v.
    Coors Brewing Co*., 514 U.S. 476 (1995).

[^11]: Hearings on H.R. 8539 before the House Comm. On Ways and Means,
    74th Congress, 1st Sess. (1935) (emphasis added) (statement by then
    director of the Federal Alcohol Control Administration).

[^12]: *See, e.g., Center for Science in the Public Interest v. Dept. of
    the Treasury*, 797 F.2d 995, 1000 n. 4 (D.C. Cir. 1986) (holding
    that clear purpose of 27 U.S.C. § 205(e) was to provide consumers
    with label information to enable them to make decisions that might
    affect their health).

[^13]: "The Committee expects, consistent with the November 30, 1987
    Memorandum of Understanding, that the Alcohol and Tobacco Tax and
    Trade Bureau (TTB) of the Department of Treasury will pursuant to
    the Federal Alcohol Administration Act determine how, as
    appropriate, to apply allergen labeling of beverage alcohol products
    and the labeling requirements for those products. The Committee
    expects that the TTB and the FDA will work together in promulgation
    of allergen regulations, with respect to those products." House
    Report 108-608, 108^th^ Congress, 2^nd^ Sess.; Food Allergen
    Labeling and Consumer Protection Act of 2004 (Pub. L.108-282).

[^14]: 27 U.S.C. § 205(e)(1), (4).

[^15]: TTB, "Nutrient Claims in the Labeling and Advertising of Wine,
    Distilled Spirits, and Malt Beverages: 'Serving Facts' Panel" (Sept.
    2004) (available at [http://www.ttb.gov](http://www.ttb.gov/)). In
    an earlier July version of the specifications, the Serving Facts
    panel was also required to include the statement "A standard drink
    contains 0.6 fl oz of alcohol. A serving of this beverage is XX
    standard drink(s) \[or XX of a standard drink\]." It also permitted
    use of an optional graphic showing that a standard serving of beer,
    wine, and spirits each contain 0.6 fl oz of alcohol.

[^16]: *See, e.g., Central Hudson Gas & Elec. Corp. v. Public Service
    Commission of New York*, 447 U.S. 557 (1980).

[^17]: *Taylor Wine Co., Inc. v. Department of Treasury*, 509 F.Supp.
    792, 795 (D.D.C. 1981) (First Amendment protects disclosure of
    information that is "purely objective, easily verifiable, and in no
    way misleading").