Have you ever noticed that some alcohol beverages have a Nutrition Facts panel and others do not, and have you ever wondered why? The reason for this difference is because some alcohol beverages are regulated by the Alcohol and Tobacco Tax and Trade Bureau (TTB) while others are regulated by the Food and Drug Administration. This article explains which agency regulates which types of alcohol beverages.

Who’s Regulates What?

The regulatory divide between TTB and FDA boils down to statutory definitions. Under the Federal Alcohol Administration (FAA) Act, the TTB has regulatory jurisdiction over distilled spirits, malt beverages, and wine with a 7% or more alcohol content. Of these three definitions, that of “malt beverages” is the trickiest. The FAA Act defines “malt beverage” as “a beverage made by the alcoholic fermentation of an infusion or decoction, or combination of both, in potable brewing water, of malted barley with hops, or their parts, or their products”. 27 U.S.C. § 211(7). The FAA Act does not define beer, however the Internal Revenue Code (IRC) does. The IRC defines beer as any fermented beverage “brewed or produced from malt, wholly or in part, or from any substitute therefor.” 26 U.S.C. § 5052(a).

Given these definitions, TTB has ruled it does not regulate certain beer. TTB, in 2008, explained that since beer is “a fermented beverage that is brewed from a substitute of malt (such as rice or corn) but without any malted barley” it “does not fall within the definition of a ‘malt beverage’ under the FAA Act.” TTB also explained that “a fermented beverage that is not brewed with hops may fall within the IRC definition of ‘beer’ but also falls outside the definition of a ‘malt beverage’ under the FAA Act.” With this explanation, TTB declared it does not have jurisdiction over beers “that do not conform to the definition of a ‘malt beverage’ in the FAA Act”. What this means is that, in addition to wines with less than a 7% alcohol content, TTB does not regulate beers made without hops or made with a malted barely substitute such as sorghum, rice, or wheat.

The alcohol beverages that fall outside of TTB’s jurisdiction, fall under FDA’s regulatory authority. The Federal Food, Drug, and Cosmetic Act (FFDCA), defines food simply as “articles used for food and drink.” 21 U.S.C. § 321(f). With such a broad definition, the alcohol beverages that fall under FDA’s regulatory jurisdiction are legally considered food.

Why Does it Matter Who Regulates the Beverage?

TTB and FDA require beverage manufacturers to include different information on product labels. Therefore, it is important for alcohol beverage producers to know what legal definition their product falls under, and if it is a wine, its alcohol content. Knowing who regulates a product label is also important because if a product is regulated by TTB, the beverage maker must submit the label to TTB for approval before selling the product. On the other hand, FDA does not perform pre-market label approval.

TTB Label Requirements

TTB separately regulates the labeling and advertising of wine, distilled spirits, and malt beverages. However, TTB requires labels on these products to contain the same general information. Generally, these product labels must include:

• The product’s brand name
• Class, type, or other designation (table wine, bourbon whisky, etc.)
• “Bottled by” or “packed by” followed by name and address of the bottler or packer.
• Net contents such as 1 liter or 8 ounces.
• Alcohol content.
• A statement if the product contains coloring such as Yellow No. 5 or carmine.
• If the product contains 10 or more parts per million of sulfites, then a “contains sulfites” or “contains sulfiting agent” statement.

Notably, TTB does not require the products it regulates to include a facts panel as seen on food and dietary supplements. However, on November 17, 2022, TTB responded to a 2003 petition that asked TTB to initiate rulemaking that would require an alcohol facts panel on TTB regulated products. In its response to the petition, TTB stated it “will engage in new rulemaking on the issues of nutrient content labeling, expanded alcohol content labeling, major food allergen labeling, and ingredient labeling.”

FDA Label Requirements

Alcohol beverages regulated by FDA must adhere to the requirements found in 21 C.F.R. Part 101, which regulates food labeling. FDA explains that these labels must bear:

• A statement of identity. The statement of identity can be similar to the statement of composition that is required for certain malt beverages under TTB’s regulations such as “Beer made from sorghum” or “Sorghum Beer”.
• An accurate statement of the net quantity of contents.
• The name and place of business of the manufacturer, packer, or distributor (e.g., Imported by ABC Brewers, Chicago, IL 52705).
• A statement of ingredients that includes the common or usual name of each ingredient if the product is made from two or more ingredients, in descending order of predominance by weight (e.g., Ingredients: sorghum, water, rice, yeast, molasses, FD&C Yellow No. 5). This includes, but is not limited to, the following ingredients: (a) name of any chemical preservatives present and a description of the function of the preservative (e.g., Ingredients: sorghum, water, rice, yeast, molasses, ascorbic acid to promote color retention); (b) a declaration of any added coloring, and (c) a declaration of added flavor, such as any spices, natural flavors, or artificial flavors.
• Nutrition labeling usually in the form of a Nutrition Facts panel.

These are the same requirements that apply to FDA regulated food, which is all food except meat, poultry, and egg products (which are regulated by the United States Department of Agriculture and are also subject to very similar regulations).

What About Labeling Claims?

Like food labels, alcohol beverage labels often contain labeling claims. Labeling claims are those statements on a food or beverage labels that state the product is “healthy”, “fat free”, or even “organic.” For TTB regulated products, “TTB uses the Association of Analytical Communities (AOAC) and TTB methods when reviewing labeling claims and advertising claims by taking samples of alcohol beverage products to validate calorie, fat, carbohydrate, and protein statement.” For FDA regulated products, producers must ensure they follow FDA’s regulations. To learn about these regulations read NALC’s article on the topic here.

As for organic claims, alcohol beverage producers, regardless of which agency regulates the product, must seek USDA organic certification before labeling a product as organic.

What About Allergen Labeling?

Alcohol beverages often contain ingredients derived from some of the major food allergens. However, only FDA regulated alcohol beverage products are required to disclose whether the product contains a major food allergen. Allergen labeling is currently optional for TTB regulated products.

Conclusion

It is important to ensure a product, be it a food or alcohol beverage, has an accurate label. Leaving out required information or including false information can lead to both regulatory action and civil consumer lawsuits. Knowing what is required on the label of a product starts with knowing who regulates the product. Knowing who regulates a product will not only dictate what a producer includes on the label, but also whether the producers must seek pre-market label approval. Whether regulated by TTB or FDA, alcohol beverage makers should become familiar with the regulations they must follow.

For more information on food labeling generally, visit NALC’s food labeling reading room, here.

**This article was written by former NALC Staff Attorney Jana Caracciolo.