Issue link: http://winesandvines.uberflip.com/i/172581
wine labeling Federal Trade Commission weighs in The Federal Trade Commission (FTC) settlement with Phusion Project LLC, the producer of a malt beverage energy drink called Four Loko, recharged the Serving Facts debate. In 2011, the FTC issued an administrative complaint alleging that Phusion had falsely claimed that the 23.5ounce can of 11%–12% ABV Four Loko contained the equivalent of one or two 12-ounce beers and could safely be consumed on a single occasion. As part of a settlement, the FTC issued a final order in February 2013 requiring Phusion to seek approval from TTB for an Alcohol Facts panel to be included on Phusion's products. The panel would include the container size, percentage alcohol by volume, number of servings per container and the following statement: "According to the U.S. Dietary Guidelines, a serving contains 0.6 ounces of pure alcohol." The day after the FTC issued its order, Diageo and the original petitioners again pressed TTB to adopt Serving Fact regulations.7 In an interview with the Wine Spectator, a representative for the Center for Science in the Public Interest acknowledged that the distilled spirits industry has "probably for 30 years now been promoting the concept that all of these beverages are equivalent in terms of alcohol content per drink. And naturally that is a stalking horse for an argument that the beverages ought to be taxed at the same level as well."7 TTB interim policy On May 28, 2013, the TTB issued an interim policy allowing for voluntary inclusion of Serving Facts statements on alcoholic beverage products. The policy includes many of the changes recommended by the Wine Institute in its 2008 response to Notice No. 73. First, the inclusion of Serving Facts panels remains entirely voluntary. Second, although any Serving Facts panel must include calories, carbohydrates, proteins and fat per serving, there is no requirement that the panel include ounces of alcohol per serving. Third, TTB adopted the 5-ounce referenced serving size for wines from 7% to 16% ABV, and a 2.5-ounce serving for wines from 16% to 24% ABV. Fourth, TTB stated that if a producer decides to include the amount of alcohol per serving on the panel, it must also include the ABV on the panel, thus providing some context for consumers. The TTB made clear that the rulemaking process for Serving Facts statements is far 64 p r acti c al w i ne ry & v i ne yard O CTO BER 20 13 from complete. If the past is any guide, Diageo and the distilled spirits industry will continue to push for mandatory Serving Facts statements and mandatory disclosure of alcohol per serving. Any attempt to couch this debate as a fight to provide consumers with nutrition information is flawed. The long history of Serving Facts statement rulemaking shows that the disagreement between industry members is largely about alcohol content. PWV John Trinidad is a Napa, Calif.-based wine law attorney at Dickenson Peatman & Fogarty, where he works with the Alcohol Beverage, Business and Intellectual Property departments. Prior to joining Dickenson, Trinidad served as a litigator in Washington, D.C., and San Francisco, Calif., and worked harvest for wineries in Burgundy, France, and Healdsburg, Calif. He is a graduate of Harvard College and the New York University School of Law. Bibliography 1. Center for Science in the Public Interest and National Consumer League, "Petition to Improve Mandatory Label information on Alcoholic Beverages," (Dec. 16, 2003), available at cspinet. org/booze/031216IngLabelingPetition. pdf (hereinafter, "2003 Petition"). 2. Press Release, "Diageo Marks Sixth Anniversary of Petition to Allow Serving Facts on Its Bottles," (Dec. 16, 2009), available at bloomberg.com/apps/new s?pid=newsarchive&sid=a7TTibpZ6HfA (stating that the petition was "backed in large part by Diageo" after it was filed). 3. Labeling and Advertising of Wines, Distilled Spirits and Malt Beverages; Request for Public Comment, 70 Fed. Reg. 22274 (April 29, 2005), available at gpo.gov/fdsys/pkg/FR-2005-04-29/ pdf/05-8574.pdf. 4. Labeling and Advertising of Wines, Distilled Spirits and Malt Beverages, 72 Fed. Reg. 41860 (July 31, 2007), available at gpo.gov/fdsys/pkg/FR-200707-31/pdf/E7-14774.pdf. 5. Wine Institute, Letter re: "Notice no. 73: Labeling and Advertising of Wines, Distilled Spirits and Malt Beverages," (Jan. 27, 2008), available at wineinstitute.org/files/SFLPC.pdf. 6. Distilled Spirits Council of the United States, Letter re: Notice No. 73 – Labeling and Advertising of Wines, Distilled Spirits and Malt Beverages (72 Fed. Reg. 41860 (July 31, 2007))," (Jan. 27, 2008), available at regulations.gov/#!documentDetail;D= TTB-2007-0062-0434. 7. Ben O'Donnell, "Labeling Cold War Heats Up Again," (Feb. 22, 2013), available at winespectator.com/webfeature/show/id/48072.com.