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In response to changes in the FDA’s regulations on gluten claims on foods, TTB issued Ruling 2020-2 in October 2020, modifying its prior position on “gluten-free” claims on labeling and advertising on alcoholic beverages. The changes are summarized below.
What Was Allowed Prior to the New Ruling?
Prior to the new Ruling, TTB allowed “gluten-free” claims (including claims such as “no gluten,” “free of gluten,” and “without gluten,”) on alcoholic beverage labels and ads only if the products were produced without gluten-containing ingredients, and provided the producer took appropriate steps to ensure the product ingredients and facilities did not have cross-contact with gluten.
Prior to the new ruling, TTB allowed labels and ads for alcoholic beverages fermented from gluten-containing grains to claim that the products were processed (or “treated” or “crafted”) to remove gluten, if the claim was accompanied by a qualifying statement and the producer has documentation to verify the steps taken to remove gluten. Such products could not include claims that they were “gluten-free,” and TTB would consider such claims to be misleading, regardless of the actual gluten content of the finished products.
What Was Changed in the New Ruling?
Distilled spirits products that are distilled from gluten-containing grains can now make “gluten-free” claims, provided they are made following good manufacturing practices to ensure the product is not exposed to gluten-containing ingredients. The distillation process removes proteins and gluten, the absence of which can be detected by scientifically valid testing methods, so TTB has determined “gluten-free” claims on these distilled products to be safe.
Producers must be prepared to substantiate, upon request, the absence of protein (and thus gluten) in the distillate, the absence of gluten in any added ingredients, and the precautions taken to prevent cross-contact, including from storage materials that may contain gluten.
Sum It All Up – What is Allowed Now?
Wine, beer or spirits products produced without gluten-containing ingredients and made in accordance with good manufacturing practices can continue to make “gluten-free” claims.
Fermented products made using gluten-containing products still cannot claim to be “gluten-free,” but can continue to make claims that their products were processed/treated/crafted to remove gluten, if (1) the producer submits a description of the method used to remove gluten along with their COLA application, and (2) the labeling and ads conspicuously bear the following qualifying statement: “Product fermented from grains containing gluten and [processed or treated or crafted] to remove gluten. The gluten content of this product cannot be verified, and this product may contain gluten.”
Distilled spirits product labels that currently make claims regarding treatment to remove gluten can be changed to say “gluten-free” without the need for a new COLA (provided they are entitled to make that claim).
It remains TTB’s policy that any other explicit or implicit claims about gluten content are prohibited if they are false or tend to create a misleading impression. TTB will evaluate such statements on a case-by-case basis, and may require a disclaimer or some other qualifying statement to dispel any misleading impression created by such statements.
Labels and ads for fermented products cannot claim a specific level of gluten in the finished product (such as “contains x ppm”) until FDA/TTB conclude that a scientifically accurate testing methodology exists for such products.
Why Are Distilled Spirits, Fermented Products, and Foods Treated Differently?
Under FDA regulations, labels and ads for food products produced with gluten-containing ingredients can make “gluten-free” claims if the product has been processed to reduce gluten to below 20 ppm (i.e., 20 mg or more per kilogram). However, FDA and TTB are not aware of any scientifically valid testing method to measure gluten in fermented products, such as beer or wine, so until such testing is available, TTB will not allow “gluten-free” claims on fermented products made with gluten-containing ingredients. Similarly, FDA will not allow “gluten-free” claims on wine under 7% abv and beer made without malt, which products are subject to FDA labeling regulations, if they are made with gluten-containing ingredients. Distilled spirits, on the other hand, can be determined to be gluten-free because of the absence of protein (and gluten) eliminated in the distillation process, which is why TTB treats spirits differently and allows “gluten-free” claims.
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.
Alcohol.law Digest is published for general informational purposes only and is not intended as legal advice. Copyright © 2021 · All Rights Reserved ·
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