Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages

[Bier Distillery]

Any thoughts on this?

Federal Register/Vol. 83, No. 227/Monday, November 26, 2018/Proposed Rules

https://www.gpo.gov/fdsys/pkg/FR-2018-11-26/pdf/2018-24446.pdf

In particular, requiring barrels to be approximately 50 gallons?

[Silk City Distillers]

Gee, wonder how that got in there...

 

 

[indyspirits]

The exact same way the requirement for new oak got in the CFR in 1935

 

 

[Foreshot]

Quote

Finally, TTB proposes to define the term ‘‘oak barrel,’’ which is used with regard to the storage of certain bulk spirits. TTB and its predecessor agencies have traditionally considered a ‘‘new oak container,’’ as used in the current regulations, to refer to a standard whiskey barrel of approximately 50 gallons capacity. Accordingly, TTB proposes to define an oak barrel as a ‘‘cylindrical oak drum of approximately 50 gallons capacity used to age bulk spirits.’’ However, TTB seeks comment on whether smaller barrels or non-cylindrical shaped barrels should be acceptable for storing distilled spirits where the standard of identity requires storage in oak barrels.

I will give them the benefit of a doubt here (as I tend to be overly optimistic anyhow). They themselves haven't enforced that a barrel is anything to this point yet other than wood.  We've been able to label products as bourbon/whiskey/etc in much smaller than 50g casks.

I think & hope they are asking the industry as a whole to help answer this question - what defines the characteristics of a barrel. I'm not totally blind that the larger industry players and related industries would like to establish that the barrels need to be new/charred/ASB size to reduce competition. So it behooves us to get our voices, and our industry organizations, heard. 

[dhdunbar]

They are seeking comments.  You should make comments.  Radical changes can take place when issues are opened for examination, like, oh someone asks for a definition of "north coast" as used on labels of California wine and holy smokes suddenly you have vitacultrual areas.  Stay alert and look at the comments that TTB receives.  You can find them at:

 Docket No. TTB–2018–0007 at Regulations.gov.

For me, this works as a direct link to the comments:  https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&D=TTB-2018-0007

There are only five comments to date.  Here is one that specifically address barrel size:

Comment

The proposed rule for defining an "oak barrel" as having a capacity of 50 gallons is arbitrary and is unnecessarily restricting for defining categories. Spirits which have been in a smaller or larger cask can reasonably acquire the flavor and appearance of spirits in 50 gallon casks. Smaller producers use the smaller casks to produce spirits that are in line with the categories and opposition to their use is SUBJECTIVE and should not be a basis for rule making.

 

Note that the comment includes the name of the person making it.  I did not.  But if you comment, persons will know.  You can also sign up for notifications when new comments are received.  I didn't do that.  I think it will avalanche.  

 

Look for what the Distilled Spirits Counsel says when its comments hit the site.  

 

 

[Foreshot]

Read this: https://twitter.com/KingsCoWhiskey/status/1070453422153854976

We need to emphasis consumers have no understanding or expectation of what size a barrel is. It's not understood the way that the age statement is. We don't want to be forced to have "barrel" statements. If we do expect the big players to have advertising that emphasizes  the bigger the barrel the better, and really dig at craft producers using smaller than ASB barrels.

As craft producers we don't have the lobbyist the big guys do. We have numbers though, so we need to use them to let the TTB know we don't want to be forced to use a specific barrel size or have barrel statements. 

[dhdunbar]

The issue of barrels has been central to arguments about whiskey since the Pure Food and Drug Act of 1908.  Barrels  were debated by congress when it passed the FAA Act, were the subject of hearings in 1936, 1939, 1947, and 1968 - that's off the top of my head and the years may be wrong - and now once again. 

If you want to argue convincingly, it would help to know that history.  Look to what the Distilled Spirits Counsel says and be prepared to use or rebut that.  The large producers do not have a unified agenda.  Divergent economic interest have been central to the debates from 1908 forward.  Interesting times. I really don't have the time to dig deeply into this. 

You guys may want to divide and conquer - get your heads together and divide up the research.  Then put it all together into a cogent argument, if you can agree on what the answer should be, because I know of some craft distillers who hold that small barrel strategy is not the way to go and others think they need them to create cash flow.  

If someone wants to do the research, PM me and I will try to find the Treasury Decisions, etc that create the historical record of how TTB has arrived where it has.  

[Huffy2k]

Honestly,  I wouldn't mind barrel statements as we already note the use of  "small casks" on a couple of our labels. Our tours go into detail on our barrel program and our steady upward progression in barrel size.  We are transparent that we've used small barrels and own the fact they allowed us to build a business by having a good product to sell in under 2 years.  I'd much rather see TTB enforce existing laws on whiskey age statements. I see so many NAS labels from distillers that claim to distill themselves, are only a year or two old and yet have no age statement on their whiskey. 

[Brian]

What is a BARREL?

 Below is the reference for the TTB asking for comment on proposed rule changes for the definition of "barrel", etc. (see very bottom of post)

Anyone in the beverage industry has an open invitation to steer the TTB's definition and subsequent enforcement of rules impacting our businesses.

Anyone using barrels in their business should (must?) be commenting on this proposed rule.

These rules effect the definition of grain, barrel (and allowed sizes), proof, oak container, and aging.

Anyone using a barrel smaller than 50-53 gallons should (must) be commenting on this proposed rule.

Anyone trying to get to market faster by using barrels smaller than 53G to preform experiments or uses in steer the profile of their products by dosing with "over-oaked" or non-oak species should be commenting on this rule making.

If your want to use barrels composed on non-oak species in the heads, interleaved staves of non-oak with oak staves or any non-standard aging system such as the "Squarrell" which uses a stainless steel frame with replaceable oak or other species panels.  This non-round solution allows significant cost reduction and reduced impact on harvesting of oak and square/rectangular increased storage density.

The TTB is as bound by tradition as any of our institutions.  It was created to provide guidance for how our industry is allowed to grow and change with the hindsight of tradition as a reference.

If the constraints of the TTB rules seem limited and restricted and in fact are slowing innovation and growth, this is the time to speak up.

 

Notice No. 176: Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages

 

1. Subpart A—General Provisions

Proposed subpart A includes several sections that have general applicability to part 5, including a revised definitions section, a section that defines the territorial extent of the regulations, sections that set forth to whom and to which products the regulations in part 5 apply, a section that identifies other regulations that relate to part 5, and sections addressing administrative items such as forms and delegations of the Administrator.

Proposed § 5.1, which provides definitions of terms used in part 5, has some changes from the regulatory text that appears in current § 5.10. In addition to the proposed amendments discussed above in section II B of this document, TTB proposes to modify the definition of “age” to simplify it and to make clear that spirits are only aged when stored in or with oak. The wood contact creates chemical changes in the spirits, which is the aging process. Thus, for example, spirits stored in oak barrels lined with paraffin are not “aged.”

Additionally, TTB proposes to add a definition of “American proof,” which cross references the definition of “proof.” The term “American proof” is used in some circumstances to clarify that the proof listed on a certificate should be calculated using the standards in the part 5 regulations, not under another country's standards.

TTB proposes to amend the definition of “distilled spirits” to codify its longstanding position that products containing less than 0.5 percent alcohol by volume are not regulated as “distilled spirits” under the FAA Act.

TTB also proposes to add a definition of “grain,” which would define the term to include cereal grains as well as the seeds of the pseudocereal grains: amaranth, buckwheat, and quinoa. TTB has received a number of applications for labels for products using pseudocereals, and TTB also notes that the FDA has proposed draft guidance allowing the seeds of pseudocereals to be identified as “whole grains” on labels (see 71 FR 8597, February 17, 2006).

Finally, TTB proposes to define the term “oak barrel,” which is used with regard to the storage of certain bulk spirits. TTB and its predecessor agencies have traditionally considered a “new oak container,” as used in the current regulations, to refer to a standard whiskey barrel of approximately 50 gallons capacity. Accordingly, TTB proposes to define an oak barrel as a “cylindrical oak drum of approximately 50 gallons capacity used to age bulk spirits.” However, TTB seeks comment on whether smaller barrels or non-cylindrical shaped barrels should be acceptable for storing distilled spirits where the standard of identity requires storage in oak barrels.

[bluestar]

On 12/4/2018 at 8:47 AM, indyspirits said:

The exact same way the requirement for new oak got in the CFR in 1935

New oak got into the CFR in the 30's because of the coopers lobbying, needing to rebuild their business after prohibition. I doubt it is the coopers now, they can't make enough to sell. But I don't doubt lobbying from large distillers would be likely.

[JNorris]

Here is a PDF checklist to aid you in making beneficial and pointed comments:

https://www.regulations.gov/docs/Tips_For_Submitting_Effective_Comments.pdf

 

[Patio29Dadio]

Not developing any greater satisfaction with the TTB COLA and FONL process.  I believe they should just rename those systems to “inconsistently needs correction”. 

[bluestar]

REGARDING WHITE or UNAGED WHISKEY labeling: In the proposed rule changes for § 5.143 there is a table that includes the possibility of labeling whiskies as such. It also allows that the may be labeled as "White <grain name> whiskey or unaged <grain name> whiskey" if there is 51% or more of the named grain. All well and good, but ironically, that would create a situation where you could do so for white or unaged product, BUT NOT AGED whiskey in grains other than standard. Currently, you can not label something as "Spelt Whiskey" if it is made with 51% or more spelt, regardless of how it is aged. These "off grain" (something other than malted barley, malted rye, rye, wheat, or corn) whiskies must be categorized as "whiskey" with an added field (not part of the official description) describing its make up, and for which no set of standard rules apply, other than not being misleading. I would argue, if they are going to create this rule for white or unaged whiskey, they should also extend it to aged whiskies, OR treat white/unaged whiskies the same as aged whiskies when labeling for "off grain" mashes, for consistency.

[dhdunbar]

Interesting observation.  i'd not thought about that.

The whiskey class rules would apply.  That is, the spirits would need to be " an alcoholic distillate from a fermented mash of grain produced at less than 190° proof in such manner that the distillate possesses the taste, aroma, and characteristics generally attributed to whisky, stored in oak containers (except that corn whisky need not be so stored), and bottled at not less than 80° proof, and also includes mixtures of such distillates for which no specific standards of identity are prescribed."    

So, the same class standards apply that apply to any "generic" whiskey.  What is lacking is a "type" designation for grains other than corn, rye, wheat, oat and malt.  

Has TTB issued a statement, either formal or informal,  that you may not include another grain type in direct conjunction with the class statement required by§5.32 and  5.35, or do they rely on §5.32(b)(2)'s provision  that required statements, like class and type, must be separate and apart from any other descriptive or explanatory matters?  Not that I would expect that TTB would consistently apply that rule.

But I think your reasoning is spot on and anyone interested should   write Regulations and Rulings Division and make the proposal.  It's too late to include it in this go around,but from my perspective, the problem is simple.  TTB is trying to shoehorn products into standards that have not changed significantly since 1935, while craft producers, looking for an innovative niche from which they can wedge sales,  keep straying farther and farther from the traditional, in a different sort of modernization movement.

As to white whiskey being whiskey, since the first edition of Webster's dictionary in something likje 1823,, the common meaning has been the same, spirits distilled from grain.  As far as I can tell, everything else has been generated by internecine battles within the industry..  I think there is not one consumer in 10,000 who would give a proverbial flying whatever if someone labeled a product "Spelt Whiskey."  You sent me to the dictionary, buy the way, with that one. It says the spelt is an ancient wheat and its "grain" is called "farro."  

So I learn.

[b_rad]

TTB is finally publishing changes to the Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages!

Of note: oak barrels can be any size and bottles can be +- 0.3% abv

§ 19.356 Alcohol content and fill.
*****

(c) Variations in alcohol content. Variations in alcohol content may not exceed 0.3 percent alcohol by volume above or below the alcohol content stated on the label.

(d) Example. Under paragraph (c) of this section, a product labeled as containing 40 percent alcohol by volume would be acceptable if the test for alcohol content found that it contained no less than 39.7 percent alcohol by volume and no more than 40.3 percent alcohol by volume

  https://www.federalregister.gov/documents/2020/04/02/2020-05939/modernization-of-the-labeling-and-advertising-regulations-for-wine-distilled-spirits-and-malt

[Roger]

Hopefully the new fill rules will open the door to much broader use of digital proofing equipment that is reasonably priced, and easy to use.