TTB Issues New Proposed Rulemaking for Alcoholic Beverage Advertising

Late last month, the Alcohol and Tobacco Tax and Trade Bureau (the “TTB”) announced several proposed changes to federal rules that govern the advertising and labeling of alcoholic beverages. The proposed rule changes were announced through publication of a rulemaking document (Notice No. 176).   Through these proposed changes, the TTB seeks to update and clarify the labeling and advertising regulations for wine, distilled spirits, and malt beverages.  There are a number of provisions in the new proposed regulations that will impact the marketing and advertising of alcoholic beverages. Some of the major marketing/advertising related points are outlined below.

This new rulemaking is the latest phase of a multi-year effort by the TTB to attempt to modernize alcoholic beverage industry regulations. The TTB is seeking public comments on the proposed regulations and is accepting comments through March 26, 2019.

According to the TTB, the proposed changes can be divided into three categories: (1) clarifying changes; (2) liberalizing changes; and (3) changes that impose new or additional requirements.  Some examples of the various proposed types of changes include:

• Addressing questions the public frequently asks TTB regarding labeling and advertising;

• Codifying TTB’s current policy that compliance with the labeling regulations issued under the FAA Act does not relieve industry members of their responsibility to comply with FDA regulations;

• Codifying the TTB’s current policy that the issuance of a Certificate of Label Approval does not provide trademark protection or relieve the certificate holder from liability for violations of the FAA Act or other laws or regulations, and that products may still be mislabeled if the approved label contains statements that are false or misleading;

• Codifying current TTB policy with respect to allowing use of certain non-misleading labeling claims about environmental and sustainability practices;

• Codifying current TTB policy that allows truthful and non-misleading comparisons on labels and in advertisements without violating the prohibition against ‘‘disparaging’’ statements;

• Providing added clarity on the use of flags and other symbols of a government;

• Allowing greater flexibility in the placement of mandatory information on labels;  

• The proposed regulations also set forth specific substantiation requirements, which are new to the regulations, regarding the level of substantiation alcoholic beverage advertisers should have in order to support labeling and advertising claims;

• The proposed regulations now make clear that any labeling claim that does not have a reasonable basis in fact, or cannot be adequately substantiated upon the request of the TTB, will be considered misleading.

The TTB is proposing to give all regulated entities three years to come into compliance with the proposed regulations, should they be finalized.  That said, March 2019 will be here quickly so it will be important to review this proposed rulemaking to determine how it might impact your or your client’s advertisements or labels and also to determine if there are any comments or feedback that you would like to provide to the TTB regarding this proposed rulemaking.