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TTB Issues New Ruling on Nutritional Content Statements

On September 28, 2020, TTB issued TTB Ruling 2020-1 and the corresponding TTB Procedure 2020-1, which expand the allowable tolerances for calorie statements in alcohol labeling and advertising. The new ruling further clarifies that producers are not required to conduct laboratory analyses prior to providing nutritional content information.

Expanded Calorie Tolerances.

In a 2004 Ruling, TTB began allowing permittees to voluntarily provide information about the nutrient content of their products. Specifically, TTB began to allow statements about a product’s calories, carbohydrates, protein and fat content, if truthful and accurate information was provided for each of the four elements in a “statement of average analysis.” In a subsequent 2013 Ruling, TTB expanded on its 2004 ruling and began allowing producers to provide the same nutritional information in a Serving Facts panel.

Under both the 2004 and 2013 rulings, calorie statements were compliant as long as the actual calorie content, as determined by TTB, was within a range of plus 5 or minus 10 calories from the advertised calories. For example, a label that says a serving of a product contains 100 calories was compliant as long as TTB’s testing shows no less than 90 calories nor more than 105 calories. The new ruling expands that tolerance to more closely mirror the FDA, which allows producers to understate calories by as much as 20%. Under the new TTB Ruling, a claim that a serving contains 100 calories is still compliant if the actual calories as determined by TTB are not more than 120 (vs. 105 under the old rule). There is no specific percentage tolerance for overstatements of calories on labels or ads; they are complaint if they are within a reasonable range and within good manufacturing practices. (We suspect overstatement of calories on alcoholic beverages is rare.)

TTB also will now allow permittees to round the calories to the nearest 10-calorie increment for per-serving amounts above 50 calories, and to the nearest 5-calorie increment for per-serving amounts up to and including 50 calories, which is also more consistent with FDA requirements. The same 20% tolerance applies to the advertised calorie count, whether or not it is rounded. TTB will continue to allow amounts less than 5 calories to be expressed as zero.

What About Fat, Carbs, and Protein?

The ruling does not change the tolerances for fat, carbs or protein, which have been subject to the 20% tolerance since 2004. Overstatements of protein, and understatements of carbs and fat are still compliant if within the 20% tolerance. The Ruling also does not affect the tolerances for alcohol content, which are set forth in the regulations at 27 CFR §§ 4.36, 5.37, and 7.71.

Lab Analysis Not Required.

The new rulings also clarify that permittees are not required to conduct a laboratory analysis on each batch of products they produce in order to substantiate voluntary nutrient content statements. Instead, producers may rely on databases or “typical value” charts to determine the nutrient content values applicable to their products. This announcement was particularly welcome news to the members of the wine industry, whose products are not produced in accordance with a formula, like distilled spirits and beer products, and therefore their nutrient content may vary from vintage to vintage and even from barrel to barrel.

These measures bring TTB in closer conformity to the FDA food labeling regulations, and TTB believes this will encourage broader use of nutrient content statements on alcohol labeling and advertising.

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

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