Container sizes for alcoholic beverages are fraught with controversy. The industry wants flexibility in packaging but not so much that a plethora of different container sizes suddenly appear to mess up bottling lines and clog retail shelves, the bottler and container manufacturers want certainty so they can plan production and the regulators want ease of calculating alcohol tax revenue. Balancing these interests has become more difficult as domestic and international trade have opened borders to different container regulations.
Against this background, the TTB (Alcohol, Tobacco Tax & Trade Bureau) opened Rulemaking 176 in 2018 suggesting multiple changes to labeling and advertising regulations for wine, distilled spirits and malt beverages, including important changes in the standards of fill for wine and distilled spirits.[1] After receiving over 1,000 Comments in Rulemaking 176, the TTB created two separate Rulemakings (Rulemakings 182 and 183) to consider the standards of fill for wine and distilled spirits besides other issues[2].
On December 29, 2020, the TTB issued final rules for Rulemakings 182 and 183 that added new standards of fill for wine and distilled spirits. The TTB noted that the Comments filed on the standards of fill in all three of the Rulemakings noted above were considered in issuing this final decision (over 1,000 Comments).[3]
The TTB’s initial proposal was to eliminate all standards of fill for wine other than at least 50 milliliters and to eliminate all standards of fill for distilled spirits except for maintaining the minimum size of 50 milliliters and a maximum size of 3.785 liters. After reviewing the many comments, the TTB instead added three new standards of fill for wine and three new standards of fill for distilled spirits.
The most important change for the wine industry was the adoption of the 250 ml size. This permits this very popular size (basically a single serving) for sale in sports stadiums and entertainment venues without having to go through the charade of breaking the 250 ml containers out of a 4-pack (which is how most 250 ml containers are sold) for single sale.
THE NEW STANDARDS OF FILL ADOPTED FOR WINE ARE DIFFERENT THAN THOSE ADOPTED FOR DISTILLED SPIRITS
The TTB adopted seven new standards of fill. The stated reasons are to give bottlers additional flexibility, to facilitate the movement of goods in both domestic and international commerce, and to provide consumers broader choice in purchases.
Although there were several petitions seeking TTB approval of other container sizes, the TTB noted that it did not believe there was sufficient information for it to approve these. Notably, the TTB did not adopt 620 milliliters, 700 milliliters, and 2.25 Liters for wine sizes nor the 180, 300, 360, 550, 720 milliliters and the 1.8 Liter sizes requested by the Japanese government and Japanese industry entities under a Side Letter signed as part of the 2019 U.S. – Japan Trade Agreement[4]. The TTB states it intends to address adoption of these sizes and any other new petitions to add sizes in a subsequent rulemaking.
THE CONTINUING DILEMMA OF “TASTERS” AND SPIRITS BASED RTD’S
Regarding distilled spirits, the TTB rejected the request to add a 2-milliliter size for distilled spirits explaining the TTB continues to maintain the minimum container size for any alcoholic beverage must remain at 50 milliliters to ensure sufficient space on the container for required labeling.
The issue here is the sale of taster’s that allow sampling of different distilled spirits product in small amounts. The minimum size for tasters remains 50 ml.
And although it adopted three new container sizes for distilled spirits, TTB did not adopt the most popular can sizes of 355 milliliters, 250 milliliters, and 200 milliliters for distilled spirits. These three new sizes were only adopted for wine.
This creates a dilemma for makers of spirits based RTD’s (Ready to Drink) canned cocktails seeking to compete with canned wine. Those products must continue to be marketing in 4-packs (one liter) even though they are often sold individually.
The chart below lists the fill standards that already existed for wine and distilled spirits and lists the new fill standards adopted by the TTB in this rulemaking in red ink.
ADDITIONAL CHANGES ADOPTED:
1. Labeling for Distilled Spirits and Malt Beverages Amended. The December 29th ruling also amended labeling regulations for both distilled spirits and malt beverages to codify the TTB’s current policy of allowing distilled spirits to be labeled with the equivalent standard U.S. measure besides the mandatory metric measure. Additionally, malt beverages may now be labeled with the equivalent standard metric measure besides the mandatory U.S. measure.
2. Headspace in Wine Containers Amended. The TTB increased the minimum headspace in wine containers from not over 10% of the container’s capacity to not over 30% for clear containers of 100 milliliters or less.
THERE IS MORE WORK TO DO ON THE CONTAINER FRONT
Regulatory fatigue is a real problem. The TTB has done well to address the most pressing container issues (especially the 250 ml wine container controversy) but more work continues to be done and we wonder – do we need container size regulations at all? The TTB itself appears to agree that as regulating container sizes gets more complicated perhaps the better way is to do away with container size regulation altogether and let the market seek its own level.
The viewpoints expressed in this article are provided for educational and informational use only and are not to be construed as legal advice. If you need legal advice, please contact us.
[1] Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages, November 26, 2018, 83 Federal Register 60562.
[2] Elimination of Certain Standards of Fill for Wine, July 1, 2019, 84 Federal Register 31257 and Elimination of Certain Standards of Fill for Distilled Spirits; Amendment of Malt Beverage Net Contents Labeling Regulation, July 1, 2019, 84 Federal Register 31264.
[3] Hinman & Carmichael LLP submitted Comments in Rulemaking 176 and 182. Click here to see the Comments supporting the adoption of the 250 milliliter size for wine.
[4] Signed on October 17, 2019.
This blog is dedicated to occasional (and hopefully interesting) reports of state and national alcoholic beverage regulatory developments that we encounter in our practice. Booze Rules (and any comments below) are intended for informational use only and are not to be construed as legal advice. If you need legal advice please consult with your counsel.