Neal D. Fortin

Food Regulation


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claim is qualified. For example, one cannot claim, “cholesterol free,” on soybean oil but rather must make a qualified statement, such as “a cholesterol free food.” A different approach, however, is taken with gluten because of the public health significance. Among other reasons, it might be misleading to suggest that a particular food category is always gluten‐free because cross‐contact with gluten‐containing ingredients can and does occur in facilities where gluten‐containing ingredients are present. In short, foods that are inherently free of gluten can make “gluten free” claims without being considered misleading.78

      NOTE

      1 3.33 Oats and gluten. Oats contain avenin, a protein complex that some include generically as a gluten; however, avenin is different than the gluten in wheat, rye, and barley. About 1 percent of those with celiac disease have a reaction to the avenin (gluten) of oats. Most of the gluten problem with oats comes from cross contamination with wheat, rye, or barley. Klara Garsed & Brian B. Scott, Can oats be taken in a gluten‐free diet? A systematic review, 42(2) SCAND. J. GASTROENTEROL. 171–78 (2007).

      The Alcohol and Tobacco Tax and Trade Bureau (TTB) of the U.S. Department of Treasury (formally the Bureau of Alcohol, Tobacco, and Firearms, BATF) has jurisdiction over the labeling of alcoholic beverages under the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. § 201 et seq. The FAA Act applies to distilled spirits, malt beverages, and wines with 7 percent or more alcohol by volume. TTB’s dual mission is to collect alcohol tax and to protect consumers.

      TTB regulates the labels of alcoholic beverages. Thus, for example, the nutrition facts labeling required for food is not required on TTB‐regulated beverage. The FAA Act requires importers and bottlers of beverage alcohol to obtain certificates of label approval or certificates of exemption from label approval (COLAs) for most alcohol beverages prior to their introduction into interstate commerce.

      The TTB also examines formulas for alcoholic beverages for proper tax classification and to ensure that the products are manufactured in accordance with federal laws and regulations. TTB ultimately regulates what ingredients are permitted to be added to alcoholic beverages, but FDA still regulates the safety of ingredients that may be added to food and drink, including alcohol beverages.

       Allergen Labeling

       General Labeling Requirements

      The TTB labeling requirements are codified at Title 27 C.F.R. part 4 for wine, part 5 for distilled spirits, and part 7 for malt beverages. Use of words of geographic significance on wine labels is additionally covered in part 12. The alcohol beverage warning statement is covered in part 16.

       Label Approval

      The TTB reviews and approves alcoholic beverage labels and issues certificates of label approval (COLA) under the authority of 27 U.S.C. § 205(e) and 26 U.S.C. § 5301. The COLA procedures are codified at 27 C.F.R. part 13.

       Warning Statement

      GOVERNMENT WARNING: (1) According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects.

      (2) Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery, and may cause health problems.

       Wine Coolers versus Flavored Wine

      The TTB only regulates those wine products that contain 7 percent or more alcohol. The FDA regulates wine coolers and other non‐malt beverages containing less than 7 percent alcohol by volume. Therefore, wine coolers that purport to contain unfermented fruit or vegetable juice are covered by 21 C.F.R. § 101.30 and are required to bear a percentage juice declaration.

       A Double Standard

      The requirement for a percentage juice declaration on wine coolers has been called unfair because the same requirement does not apply to most other alcoholic beverages including spirits‐based and malt‐based coolers, which compete directly against wine coolers. FDA has commented: