[Federal Register Volume 70, Number 234 (Wednesday, December 7, 2005)]
[Proposed Rules]
[Pages 72731-72733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23680]


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DEPARTMENT OF THE TREASURY

Alcohol and Tobacco Tax and Trade Bureau

27 CFR Parts 4, 5, and 7

[Notice No. 53]
RIN 1513--AB16


Use of the Word ``Pure'' or Its Variants on Labels or in 
Advertisements of Alcohol Beverage Products; Request for Public Comment

AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau is considering 
amending the regulations concerning the use of the word ``pure'' on 
labels or in advertisements of alcohol beverage products. We wish to 
gather information by inviting comments from the public and industry as 
to whether the existing regulations should be revised.

DATES: We must receive written comments on or before February 6, 2006.

ADDRESSES: You may send comments to any one of the following addresses:
    <bullet> Director, Regulations and Rulings Division, Alcohol and 
Tobacco Tax and Trade Bureau, Attn: Notice No. 53, P.O. Box 14412, 
Washington, DC 20044-4412.
    <bullet> 202-927-8525 (facsimile).
    <bullet> <a href="/cdn-cgi/l/email-protection#5a342a28371a2e2e38743d352c"><span class="__cf_email__" data-cfemail="caa4bab8a78abebea8e4ada5bc">[email protected]</span></a> (e-mail).
    <bullet> http://www.ttb.gov/alcohol/rules/index.htm (an online 
comment form is posted with this notice on our Web site).
    <bullet> http://www.regulations.gov (Federal e-rulemaking portal; 
follow instructions for submitting comments).
    You may view copies of this advance notice and any comments we 
receive on this notice by appointment at the TTB Library, 1310 G 
Street, NW., Washington, DC 20220. To make an appointment, call 202-
927-2400. You may also access copies of the advance notice and comments 
online at http://www.ttb.gov/alcohol/rules/index.htm.
    See Section VI of this notice for specific instructions and 
requirements for submitting comments and for information on how to 
request a public hearing.

FOR FURTHER INFORMATION CONTACT: Lisa M. Gesser, Regulations and 
Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 
128, Morganza, MD 20660; (301) 290-1460.

SUPPLEMENTARY INFORMATION:

I. Authority to Prescribe Alcohol Beverage Labeling and Advertising 
Regulations

    Sections 105(e) and 105(f) of the Federal Alcohol Administration 
Act (FAA Act), codified in the United States Code at 27 U.S.C. 205(e) 
and 205(f), set forth standards for the regulation of the labeling and 
advertising of distilled spirits, wine (at least 7 percent alcohol by 
volume), and malt beverages, generally referred to as ``alcohol 
beverage products'' throughout this document. These sections give the 
Secretary of the Treasury the authority to issue regulations to prevent 
deception of the consumer, to provide the consumer with ``adequate 
information'' as to the identity and quality of the product, and to 
prohibit false or misleading statements on product labels and in 
advertisements. Additionally, these FAA Act provisions give the 
Secretary the authority to prohibit, irrespective of falsity, 
statements relating to age, manufacturing processes, analyses, 
guarantees, and scientific or irrelevant matters which are likely to 
mislead the consumer. In the case of malt beverages, the labeling and 
advertising provisions of the FAA Act apply only if the laws of the 
State into which the malt beverages are to be shipped impose similar 
requirements. The Alcohol and Tobacco Tax and Trade Bureau (TTB) is 
responsible for the administration of the FAA Act and the regulations 
promulgated under it. The labeling and adverting regulations for wine, 
distilled spirits, and malt beverages are codified in title 27 of the 
Code of Federal Regulations (CFR), parts 4, 5, and 7, respectively.

II. Current Regulatory Standards

    Sections 5.42(b)(5) and 5.65(a)(8) of the TTB regulations (27 CFR 
5.42(b)(5) and 5.65(a)(8)), hereinafter referred to collectively as the 
``pure regulations,'' currently state that the word ``pure'' may not be 
used on distilled spirits labels or in advertisements unless:
    <bullet> It refers to a particular ingredient used in the 
production of the distilled spirits, and is a truthful representation 
about the ingredient; or
    <bullet> It is part of the bona fide name of a permittee or 
retailer for whom the distilled spirits are bottled; or
    <bullet> It is part of the bona fide name of the permittee who 
bottled the distilled spirits.
    TTB considers variants of the word ``pure'' such as ``purest,'' 
``purity,'' and ``pureness'' to fall within the purview of these 
regulations. These prohibitions apply only to distilled spirits. There 
are no similar prohibitions on the use of the

[[Page 72732]]

word ``pure'' in the labeling or advertising of wine or malt beverages.

III. Regulatory History Concerning the Use of ``Pure'' on Distilled 
Spirits Labels and in Advertisements

    TTB and its predecessor agencies have had a regulation in force 
concerning the word ``pure'' since the 1930s. The original regulation 
was first published on April 2, 1936 (1 FR 92), and provided that 
labels and advertisements of distilled spirits shall not contain the 
word ``pure'' except as part of the bona fide name of a permittee or a 
retailer for whom the distilled spirits are bottled. This regulation, 
as well as additional regulations governing the labeling and 
advertising of distilled spirits, was codified into 27 CFR part 5.
    On April 22, 1936, the Treasury Department published a notice of 
hearing with reference to proposed amendments to the distilled spirits 
regulations. Included among the proposed amendments were possible 
amendments to the regulations prohibiting the word ``pure'' on 
distilled spirits labels and in advertisements. On May 15, 1936, the 
Treasury Department conducted the hearings. During the hearings, 
Treasury's Assistant General Counsel, John E. O'Neill, stated that the 
``ordinary man'' regarded the word ``pure'' as denoting that the 
product is wholesome, free from adulterants, free from harmful 
ingredients, and not deleterious to a person's health. O'Neill further 
argued that if a product were permitted to be called ``pure'' consumers 
would regard it as meeting that definition. Others testified against 
the prohibition of the word ``pure'' with respect to its use to 
describe certain types of whisky. One individual testified that while 
he was satisfied with the regulations prohibiting the word ``pure'' on 
labels and in advertisements, he did not believe that the word ``pure'' 
described a healthful commodity. Rather, he believed the word ``pure'' 
would refer to whether the product had been adulterated with some other 
material. Another testified that to the average person the word 
``pure'' denotes quality and that those seeking to use it have the 
desire to distinguish between the quality of one product over another. 
Upon the conclusion of the hearings concerning the regulations in part 
5, the prohibition of the word ``pure'' remained unchanged.
    The prohibition of the word ``pure'' on distilled spirits labels 
and in advertisements was raised for reconsideration on November 21, 
1978, when the Bureau of Alcohol, Tobacco and Firearms (ATF), TTB's 
predecessor agency, published an advance notice of proposed rulemaking, 
Notice No. 313, in the Federal Register (43 FR 54266). The purpose of 
Notice No. 313 was to obtain input from industry members and the 
general public concerning the advertising provisions of the FAA Act, 
and it suggested specific topics within 27 CFR parts 4, 5, and 7, which 
ATF was considering changing. Among these topics, ATF considered 
changing the total prohibition of the use of the term ``pure.'' Of 
those that commented directly on the pure regulations, fourteen 
commenters were equally divided on whether to allow the term ``pure'' 
to be used or not. Two other commenters favored its use on straight 
whiskeys only, while one commenter favored deleting the particular 
sections prohibiting its use (Sec.  5.42(b)(5) and Sec.  5.65(a)(8)) 
and, instead, prohibiting its use under false or misleading statements 
(Sec.  5.42(a)(1) and Sec.  5.65(a)(1)). Three commenters stated that 
alcohol beverages were not pure, and that the use of the word ``pure'' 
as applied to alcohol beverages was misleading. Various regulatory 
definitions for ``pure'' suggested by commenters were viewed by ATF as 
too broad or vague to be of any assistance.
    On December 19, 1980, ATF published a notice of proposed 
rulemaking, Notice No. 362 (45 FR 83530), proposing to lift the total 
restriction against the use of the term ``pure,'' among other 
proposals. The notice stated:

    Historically, the Bureau has prohibited the use of pure when it 
refers to a distilled spirits product. However, with current 
consumer awareness and understanding, the Bureau believes that its 
present restrictive position is unnecessary when such terms used are 
truthful and not misleading. Therefore, the Bureau is proposing to 
lift the total restriction against the use of the term ``pure.'' For 
example, the Bureau will allow its use when referring to the water 
used in producing the distilled spirits. However, the Bureau is 
particularly interested in comments on this issue.

    Sixteen commenters responded concerning this issue, with 12 
supporting ATF's proposal. Two commenters who supported the use of 
``pure'' stated that it should refer to particular ingredients only, 
not the finished distilled spirits product.
    On August 8, 1984, ATF issued TD-180 (49 FR 31667), which, among 
other changes, amended the distilled spirits labeling and advertising 
regulations to modify the pure regulation to reflect its present 
content. The language in the preamble to the regulatory amendments 
explains the reasoning for the relaxation of the prohibition of the 
word ``pure:''

    ATF believes that when the word ``pure'' reflects a truthful 
statement about a particular ingredient, such as ``pure water,'' it 
should be allowed to be stated. However, the word ``pure'' may not 
be used to describe the finished product, such as ``pure gin.'' 
Therefore, ATF is amending the regulations to allow for such 
statements and claims on labels and in advertisements of distilled 
spirits. Further, the present use of ``pure'' when it is part of the 
bona fide name of a permittee or retailer for whom the distilled 
spirits are bottled is retained. One commenter suggested that the 
word ``pure'' should be allowed to appear in the name of the 
permittee who bottles the distilled spirits. ATF has no objection to 
this and is amending the regulation accordingly.

IV. Recent Enforcement Activities and Challenges to the Pure 
Regulations

    After receiving a complaint concerning advertisements of distilled 
spirits products boasting purity claims, TTB undertook a project to 
identify and contact distilled spirits industry members that were using 
the word ``pure'' or its variants in their advertising. TTB has found 
that the use of pure terminology in advertising (and in some labeling) 
appears to be confined exclusively to clear spirits such as vodka and 
gin. Within that sector, TTB has found that its use is widespread. TTB 
has sent letters stating the Bureau's policy to over 20 different 
distilled spirits industry members regarding their website advertising 
of 26 different distilled spirits products.
    As a result of the letters, some industry members raised questions 
about the pure regulations as well as TTB's policy that extends the 
regulations to include variants of the word ``pure.'' The following 
summarizes the principal arguments we received:
    <bullet> The plain language of the regulation at 27 CFR 5.65(a)(8) 
prohibits the use of the word ``pure'' only, and does not extend to 
variations on the word ``pure'' such as ``purest'' or ``purity.'' Other 
sections in the distilled spirits advertising regulations that prohibit 
certain words and variations of the prohibited words do so by using 
phrases such as ``synonymous terms'' or ``similar terms.'' The lack of 
such terms in the pure regulation evidences the intent to limit the 
regulation to the word ``pure'' only.
    <bullet> Certain vodkas are pure in the general sense of the term 
and therefore the statements are not misleading and are protected by 
the First Amendment to the U.S. Constitution.
    <bullet> Even though distilled spirits contain some impurities, 
other commodities, such as beer and wine, also contain impurities and 
TTB regulations do not prohibit use of the

[[Page 72733]]

term ``pure'' as it relates to those commodities.

V. Request for Comments

    TTB is considering whether to amend the regulations concerning the 
use of the word ``pure'' or its variants in the labeling and 
advertising of alcohol beverage products. To assist TTB in identifying 
and implementing the best course of action, we wish to gather 
information by inviting comments from the public and industry as to 
how, if at all, the existing regulations should be amended. In addition 
to general comments on the issue, we are seeking comments on the 
following specific questions.
    A. What does the general public consider the word ``pure'' to mean 
when used on labels and in advertisements of alcohol beverage products? 
Does its use convey information to the consumer about the identity and 
quality of the product? Does its use convey information about the 
alcohol content of a product?
    B. TTB considers variants of the word ``pure'' such as 
``pureness,'' ``purest,'' and ``purity'' to fall within the purview of 
the pure regulations. Are these variants misleading and, if so, should 
TTB amend the regulations to prohibit their use? Should TTB limit the 
scope of the pure regulations to the word ``pure'' only?
    C. Would the use of terms or claims such as ``pure vodka,'' ``pure 
whisky,'' ``vodka with exceptional purity'' on distilled spirits labels 
and in advertisements mislead consumers? Would the use of similar terms 
or claims on wine and malt beverage products mislead consumers?
    D. Should TTB amend the pure regulations to allow the use of the 
word ``pure'' and its variants on distilled spirits labels and in 
advertisements if the statements are truthful? How can TTB substantiate 
the truthfulness of such claims? How should pure be defined?
    E. Should TTB permit the use of the word ``pure'' or its variants 
on distilled spirits product labels and in advertisements if those 
products meet a certain standard? If so, what should that standard be?
    F. What would be the impact of allowing the use of these terms?
    G. Should TTB prohibit the use of the word ``pure'' and its 
variants on labels and in advertisements for malt beverages and wine 
products? Why or why not?

VI. Submitting Comments

    Please submit your comments by the closing date shown above in this 
notice. Your comments must include this notice number and your name and 
mailing address. Your comments must be legible and written in language 
acceptable for public disclosure. We do not acknowledge receipt of 
comments, and we consider all comments as originals. You may submit 
comments in one of five ways:
    <bullet> Mail: You may send written comments to TTB at the address 
listed in the ADDRESSES section.
    <bullet> Facsimile: You may submit comments by facsimile 
transmission to 202-927-8525. Faxed comments must--
    (1) Be on 8.5 by 11-inch paper;
    (2) Contain a legible, written signature; and
    (3) Be no more than five pages long. This limitation assures 
electronic access to our equipment. We will not accept faxed comments 
that exceed five pages.
    <bullet> E-mail: You may e-mail comments to <a href="/cdn-cgi/l/email-protection#d2bca2a0bf92a6a6b0fcb5bda4"><span class="__cf_email__" data-cfemail="1e706e6c735e6a6a7c30797168">[email protected]</span></a>. Comments 
transmitted by electronic mail must--
    (1) Contain your e-mail address;
    (2) Reference this notice number on the subject line; and
    (3) Be legible when printed on 8.5 by 11-inch paper.
    <bullet> Online form: We provide a comment form with the online 
copy of this notice on our Web site at http://www.ttb.gov/alcohol/rules/index.htm. Select the ``Send comments via e-mail'' link under 
this notice number.
    <bullet> Federal e-Rulemaking Portal: To submit comments to us via 
the Federal e-rulemaking portal, visit http://www.regulations.gov and 
follow the instructions for submitting comments.
    You may also write to the Administrator before the comment closing 
date to ask for a public hearing. The Administrator reserves the right 
to determine, in light of all circumstances, whether to hold a public 
hearing.

Confidentiality

    All submitted material is part of the public record and subject to 
disclosure. Do not enclose any material in your comments that you 
consider confidential or inappropriate for public disclosure.

Public Disclosure

    You may view copies of this advance notice, the petitions, and any 
comments we receive by appointment at the TTB Library at 1310 G Street, 
NW., Washington, DC 20220. You may also obtain copies at 20 cents per 
8.5 by 11-inch page. Contact our librarian at the above address or 
telephone 202-927-2400 to schedule an appointment or to request copies 
of comments.
    For your convenience, we will post this advance notice and any 
comments we receive on this proposal on the TTB Web site. We may omit 
voluminous attachments or material that we consider unsuitable for 
posting. In all cases, the full comment will be available in the TTB 
Library. To access the online copy of this notice, visit http://www.ttb.gov/alcohol/rules/index.htm. Select the ``View Comments'' link 
under this notice number to view the posted comments.

VII. Drafting Information

    Lisa M. Gesser and Joanne C. Brady of the Regulations and 
Procedures Division drafted this advance notice.

    Signed: September 29, 2005.
John J. Manfreda,
Administrator.
    Approved: November 3, 2005.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).
[FR Doc. 05-23680 Filed 12-6-05; 8:45 am]
BILLING CODE 4810-31-P


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