TTB issued a final rule, effective December 29, 2020, amending the existing labeling regulations for wine and distilled spirits. The revised regulations add seven new allowable container sizes (called “standards of fill”). For wine, TTB added 200, 250, and 355 milliliter sizes, and for distilled spirits, TTB added 700, 720, 900 milliliters and 1.8 liter sizes. The allowable sizes are now:

Wine – 27 CFR 4.72:·

• 50, 100, 187, 200, 250, 355, 375, 500 and 750 ml, 1L, 1.5L and 3L.
• Packages larger than 3L are allowed in even liter quantities (4L, 5L, 6L, etc.).

Spirits – 27 CFR 5.47a:·

• Packages Other Than Cans: 50, 100, 200, 375, 700, 720, 750, and 900 ml, 1L, 1.75L and 1.8L.
• Metal Cans: 50, 100, 200 and 355 ml.
• Packages larger than 1.8L are not permitted for distilled spirits.

The final rule also made two other revisions:

• TTB increased the allowable headspace (the empty space between the liquid fill line and the top of the container) from 10% to 30% of the container’s total capacity on wine packaged in clear containers of 100ml or smaller. The existing headspace limits remain in place for larger containers.
• TTB now formally allows distilled spirits to be labeled with the equivalent standard U.S. measure in addition to the mandatory metric measure, and allows malt beverages to be labeled with the equivalent metric measure in addition to the mandatory U.S. measure. Informal TTB policy already allowed this practice, and it is allowed by regulation for wine, but the new rule makes it part of the regulations.

Background

TTB had initially proposed to eliminate the standards of fill for wine except for the minimum 50ml size (to accommodate the required labeling info) and eliminate all but the minimum and maximum standards of fill for spirits. The thought behind the proposed changes was that it would expand manufacturing options and consumer purchasing options, and would promote commerce, without impacting tax revenue calculations or collection. TTB received comments in support of the elimination from commenters who felt it would provide them greater flexibility and enable them to grow their businesses.

However, TTB received many more comments in opposition to the proposed elimination, including from some industry members and their trade groups. The concerns raised by these commenters included potential consumer confusion caused by a myriad of available sizes, making it more difficult to price compare, and a more “chaotic consumer marketplace” generally. Some wholesalers and retailers also submitted comments in opposition, asserting that the proliferation of sizes would increase their costs. In the alternative, TTB had proposed not eliminating the existing standards of fill but adding new sizes based on those it had received petitions to approve. Taking into consideration the comments it received, the majority of which opposed elimination of the standards of fill, TTB opted to add certain of the proposed new sizes, as reflected in the final rule.

If you have questions about the new TTB ruling or about alcohol labeling and advertising generally, please reach out to one of the attorneys at Strike Kerr & Johns.

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