Standards of Fill for Wine and Distilled Spirits

AGENCY:

Alcohol and Tobacco Tax and Trade Bureau, Treasury.

ACTION:

Supplemental notice of proposed rulemaking; reopening of comment period.

SUMMARY:

The Alcohol and Tobacco Tax and Trade Bureau (TTB) is reopening the comment period for a proposed rule (Notice No. 210) published on May 25, 2022, which proposed changes to the authorized standards of fill for wine and distilled spirits, to solicit comments on additional suggestions raised in public comments made in response to Notice No. 210 that go beyond the scope of the original proposal. In Notice No. 210, TTB proposed to add 10 authorized standards of fill to those already authorized for wine, and alternatively, eliminating all but a minimum standard of fill for wine containers and all but a minimum and maximum for distilled spirits containers. TTB did not propose any specific standards of fill for distilled spirits as an alternative to generally eliminating them. TTB received a number of comments in response to the notice of proposed rulemaking requesting that TTB add specific new standards of fill for distilled spirits, as well as for wine, and also requesting that TTB consider eliminating the distinction between the standards of fill for distilled spirits in cans and those for distilled spirits in containers other than cans. TTB is now reopening the public comment period based on these suggestions, to provide notice to stakeholders that TTB is considering these additional requests for potential inclusion in the final rule and to also provide an opportunity for stakeholders to submit additional information to assist TTB in assessing whether to incorporate some, all, or none of these proposals into the final rule.

DATES:

The comment period for the proposed rule published on May 25, 2022 (87 FR 31787), is reopened. TTB must receive your comments on or before October 9, 2024.

ADDRESSES:

You may electronically submit comments to TTB on this document, and view copies of this document, the original notice of proposed rulemaking, supporting materials, and any comments TTB receives on it within Docket No. TTB-2022-0004 as posted at https://www.regulations.gov. A direct link to that docket is available on the TTB website at https://www.ttb.gov/laws-regulations-and-public-guidance/laws-and-regulations/all-rulemaking under Notice No. 210A. Alternatively, you may submit comments via postal mail to the Director, Regulations and Ruling Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005. Please see the Public Participation section of this document for further information on the comments requested regarding this proposal and on the submission, confidentiality, and public disclosure of comments.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers regulations setting forth standards of fill for containers of beverage distilled spirits and wine products distributed within the United States.

The authority to establish these standards is based on two provisions of law: (1) Section 5301(a) of the Internal Revenue Code of 1986 (IRC), codified at 26 U.S.C. 5301(a) in the case of distilled spirits, and (2) section 105(e) of the Federal Alcohol Administration Act (FAA Act), codified at 27 U.S.C. 205(e), for both distilled spirits and wine. Section 5301(a) of the IRC authorizes the Secretary of the Treasury to prescribe regulations “to regulate the kind, size, branding, marking, sale, resale, possession, use, and reuse of containers (of a capacity of not more than 5 wine gallons) designed or intended for use for the sale of distilled spirits . . .” when the Secretary determines that such action is necessary to protect the revenue. The FAA Act at 27 U.S.C. 205(e) authorizes the Secretary of the Treasury to prescribe regulations relating to the “packaging, marking, branding, and labeling and size and fill” of alcohol beverage containers “as will prohibit deception of the consumer with respect to such products or the quantity thereof . . . .” The FAA Act at 27 U.S.C. 206 generally prohibits the sale to consumers of distilled spirits in containers over one wine gallon.

TTB administers the IRC and FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, as codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administrative and enforcement authorities to TTB through Treasury Department Order 120-01.

B. Current Standards of Fill for Distilled Spirits

The term “standard of fill” is used in the TTB regulations and in this document to refer to the authorized amount of liquid in the container, rather than the size or capacity of the container itself. For better readability, however, this document sometimes uses the terms “size” or “container size” and “standard of fill” interchangeably. The standards of fill for distilled spirits are contained in subpart K of part 5 of the TTB regulations (27 CFR part 5).

Within subpart K, paragraph (a)(1) of § 5.203 (27 CFR 5.203(a)(1)) specifies the following metric standards of fill for containers other than those described in paragraph (a)(2) of that section:

• 1.8 Liters.
• 1.75 Liters.
• 1 Liter.
• 900 mL.
• 750 mL.
• 720 mL.
• 700 mL.
• 375 mL.
• 200 mL.
• 100 mL.
• 50 mL.

In the case of distilled spirits in metal containers that have the general shape and design of a can, that have a closure which is an integral part of the container, and that cannot be readily reclosed after opening, paragraph (a)(2) of § 5.203 authorizes the use of the following metric standards of fill:

• 355 mL.
• 200 mL.
• 100 mL.
• 50 mL.

For better readability this document will refer to the containers referenced in 27 CFR 5.203(a)(1) as “containers other than cans” and those referenced in § 5.203(a)(2) as “cans.”

In addition to the metric standards specified above, § 5.203 contains provisions regarding tolerances (discrepancies between actual and stated fill), unreasonable shortages in fill, and distilled spirits bottled or imported before January 1, 1980, and marketed or released from customs custody on or after that date (the date on which the U.S. volumetric standards were replaced by the § 5.203 metric standards).

C. Current Standards of Fill for Wine

The standards of fill for wine are contained in subpart H of part 4 of the TTB regulations (27 CFR part 4). Within subpart H, paragraph (a) of § 4.72 (27 CFR 4.72(a)) authorizes the use of the following metric standards of fill for containers, in addition to those described in paragraph (b) which are discussed further below:

• 3 liters;
• 1.5 liters;
• 1 liter;
• 750 milliliters;
• 500 milliliters;
• 375 milliliters;
• 355 milliliters;
• 250 milliliters;
• 200 milliliters;
• 187 milliliters;
• 100 milliliters; and
• 50 milliliters.

Paragraph (b) of § 4.72 states that wine may be bottled or packed in containers of 4 liters or larger if the containers are filled and labeled in quantities of even liters (4 liters, 5 liters, 6 liters, etc.).

II. Notice No. 210

On May 25, 2022, TTB published a notice of proposed rulemaking, Notice No. 210, in the Federal Register (87 FR 31787) proposing to add 10 authorized standards of fill for wine and, as an alternative, to eliminate all but a minimum standard of fill for wine containers and all but a minimum and maximum for distilled spirits containers. The 10 standards of fill proposed for wine are: 2.25 and 1.8 liters; and 720, 700, 620, 550, 360, 330, 300, and 180 milliliters.

The proposed rule followed, and took into consideration, a Department of the Treasury report on competition in the markets for beer, wine, and distilled spirits that recommended rulemaking to “again consider eliminating the standards of fill requirements.” See Treasury Report on Competition in the Markets for Beer, Wine, and Spirits (February 9, 2022), available at https://home.treasury.gov/system/files/136/Competition-Report.pdf. That report, produced in response to Executive Order 14036, “Promoting Competition in the American Economy” (published in the Federal Register on July 9, 2021, at 86 FR 36987), noted that “[c]ontainer size requirements can be a barrier to innovation and competition, insofar as producers must conform their packaging to the Treasury-mandated sizes.” Further, TTB had received questions regarding standards of fill from industry members noting difficulty in sourcing compliant containers during certain periods.

In response to Notice No. 210, TTB received 76 comments. Commenters included national trade associations, the European Union (EU), congressional representatives, individuals, and alcohol beverage companies. Most of the comments addressed the proposals, providing support for or opposition to them. However, many commenters requested that TTB consider adding certain additional authorized standards of fill for distilled spirits and wine that were not included in Notice No. 210, as either a preferred alternative to generally eliminating the standards of fill or, even if their preference was to eliminate the standards of fill, as an option for consideration in the event that the standards of fill were not eliminated. Several commenters also suggested TTB eliminate the distinction between standards of fill that apply to distilled spirits in cans and those that apply to distilled spirits in containers other than cans, which was also not proposed in Notice No. 210.

III. Additional Proposals

TTB is still considering the proposed amendments contained in Notice No. 210 and all comments it received in response. However, because of the comments that TTB received that requested amendments beyond the scope of the original proposal and, recognizing that the requested amendments should be considered in the context of those already proposed, TTB is now requesting comments on whether to authorize additional standards of fill for distilled spirits and for wine and to eliminate the distinction between the standards of fill authorized for distilled spirits in cans and those for distilled spirits in containers other than cans. TTB has grouped together and summarized the comments below. The grouping is merely for readability, and TTB may incorporate some, all, or none of the proposed sizes into the final rule, regardless of the groupings.

A. Additional Authorized Standards of Fill for Distilled Spirits

TTB received 17 comments requesting the approval of additional authorized standards of fill for distilled spirits, either as an alternative to TTB generally eliminating all standards of fill for distilled spirits or in the event that TTB did not eliminate standards of fill for distilled spirits.

Commenters requested that TTB authorize the following: For both cans and containers other than cans 3.75, 3, 2, and 1.5 liters and 500, 350, 250, and 187 milliliters; for cans, 945, 710, 700, 570, 475, and 331 milliliters; and for containers other than cans, 355 milliliters.

Some commenters requested approval of additional standards of fill above 3.785 liters, and TTB is not raising those requests for additional comment, as such standards would exceed sizes allowed by law. As noted above, the FAA Act at 27 U.S.C. 206 generally prohibits the sale to consumers of distilled spirits in containers over one wine gallon. One commenter also requested approval of a size below 50 milliliters, which we are also not specifically raising for additional comment at this time. The agency has previously opined that a minimum size of 50 milliliters is needed to ensure sufficient space on the container for required labeling, and TTB explained in the Spring 2024 Unified Agenda of Federal Regulatory and Deregulatory Actions that it intends to continue its rulemaking work to obtain comment on additional required labeling on alcohol beverages, for disclosures of major food allergens, nutritional and alcohol content, and ingredients. TTB believes any further consideration of new minimum sizes should occur after the conclusion of rulemaking that may affect the amount or type of required information that must appear on labels.

1. Both Cans and Containers Other Than Cans—3.75, 3, 2, and 1.5 Liters and 500, 350, 250, and 187 Milliliters

3.75 and 3 Liters

TTB received two comments, from the Distilled Spirits Council of the United States (DISCUS) and Milestone Brands, requesting authorization of a size “such as a 3 L or 3.75 L standard or the maximum size prescribed by law” saying that it would enable producers to provide kegged cocktails and other consumer-desired formats to showcase their products and meet consumer demand.

2 Liters

TTB received one comment, from the EU, suggesting that a size of 2 liters should be added, along with other authorized sizes (listed separately) that reflect the EU standards for spirit drinks.

1.5 Liters

TTB received two comments, from the EU and DISCUS, requesting authorization of a 1.5-liter size. DISCUS stated it would allow industry members to further streamline and harmonize sizes for certain products across different global markets and increase operational efficiencies, such as waste reduction from producing multiple SKU sizes for different markets. The EU suggested adding a size of 1.5 liters to align with EU standards which also provide for that size.

500 Milliliters

Six commenters requested that TTB authorize a 500-milliliter standard of fill. DISCUS and Milestone Brands noted that this size would fill a “large gap “between the 375 and 700 milliliter authorized sizes, and Milestone Brands stated that its approval would provide size parity with wine and malt beverage-based ready-to-drink (RTD) products. DISCUS added that the 500-milliliter size would allow industry members to further streamline and harmonize sizes for certain products and increase operational efficiencies, such as waste reduction from producing multiple SKU sizes for different markets. One commenter, Soley Beverage, noted in support of authorizing a 500-milliliter standard of fill for distilled spirits that the wine standards of fill provide an authorized size of 500 milliliters. The EU also noted in support of this size that the EU standards for spirit drinks include the 500-milliliter size.

350 Milliliters

Two commenters, the EU and DISCUS, suggested that TTB consider authorizing a 350-milliliter standard of fill. DISCUS suggested that TTB consider common sizes in markets around the world, such as 350 milliliters, to allow industry members to streamline and harmonize sizes for certain products and increase operational efficiencies, such as waste reduction from producing multiple SKU sizes for different markets. The EU suggested that the 350-milliliter size should be added, noting that it is authorized as an EU standard for spirit drinks.

250 and 187 Milliliters

TTB received comments—from the Glass Packaging Institute, O-I Glass, The Can Van, and an individual—requesting that TTB authorize a standard of fill of 250 milliliters for distilled spirits, the latter two referencing 250-milliliter cans. The commenters stated that the 250-milliliter can is one of the more popular can sizes for RTD spirit beverages, and not having it authorized limits experimentation with new brands. The Glass Packaging Institute and O-I Glass also supported authorizing a 187-milliliter size for containers other than cans. According to the commenters, the shift to smaller packaging formats continues to grow, so authorizing the 187-milliliter size and the 250-milliliter size would provide additional options for distillers and consumers within the market for smaller packaging sizes, reflect packaging options available to other beverage categories, and increase competition.

2. Cans—945, 710, 700, 570, 475, and 331 Milliliters

945, 710, 475, and 331 Milliliters

DISCUS requested that TTB authorize sizes equivalent to 945, 710, 475, and 331 milliliters (equivalent to 32, 24, 16, and 11.2 ounces respectively) for cans, saying that large and small producers of RTD distilled spirits products, many of which are sold in cans, could benefit from greater competitive market access in this space by being able to provide their products in these sizes that consumers want and that are allowed for other products.

700 Milliliters

TTB received one comment, from Suave Spirits Inc., requesting authorization of a 700-milliliter size for distilled spirits, saying it would help industry members establish uniformity in packaging sizes with European and worldwide customers that demand 700-milliliter sizes, and further reduce the number of SKUs to manage. Because 700 milliliters is already authorized for distilled spirits containers other than cans, we are considering this comment as a request for approval of that standard of fill for cans.

570 and 475 Milliliters

TTB received one comment, from WISEACRE Brewing Co. (Wiseacre), requesting that TTB authorize 570 and 475 milliliters (19.2 and 16 ounces respectively) for distilled spirits in cans. Wiseacre stated that the consumption of RTD spirits cocktails is growing, and most of the growth in the industry for RTD spirits cocktails is with 16-ounce and sometimes 19.2-ounce cans. The commenter suggested that most canning lines use a 12 ounce can diameter, and the 19.2-ounce size is the largest volume a can is safely able to hold using the 12 ounce can diameter.

Wiseacre also stated that “the rules only allow use of 12 oz and 24 oz cans.” TTB notes that the regulations at 27 CFR 5.203 do not currently authorize 24-ounce cans as a distilled spirits standard of fill; however, they do authorize 355-milliliter cans, which is equivalent to 12 ounces.

3. Containers Other Than Cans—355 Milliliters

Four commenters urged TTB to approve the 355-milliliter size for glass bottles (which would require TTB to amend the standards of fill for containers other than cans). These commenters were Representative Glenn “GT” Thompson, Representative Austin Scott, the Glass Packaging Institute, and O-I Glass. The commenters generally noted that the 355-milliliter size is currently approved for distilled spirits, but only for cans. Commenters expressed their views that this limitation restricts competition and customer choice in a growing market. One commenter stated that, given the ongoing shortage of 355-milliliter cans, having a 355-milliliter size for glass bottles would provide greater packaging flexibility to allow companies to react to supply issues while it would also support innovative packaging (including for environmental purposes). They further urged that other beverage categories have introduced new package formats and sizes, particularly in the non-alcoholic beverage market, and the shift to smaller packaging formats continues to grow. Two commenters expressed concern that glass bottle manufacturers are being harmed by their inability to use a 355-milliliter size, as they are unable to compete on a level playing field with other container manufacturers.

B. Harmonization of Authorized Standards of Fill Across Distilled Spirit Container Types

Three commenters representing glass manufacturers (Representative Austin Scott, Representative Glen “GT” Thompson, and O-I Glass) stated that removing the distinction between cans and other containers would result in greater competition, consumer choice, and a consistency of regulation, without adding to consumer confusion.

The distinction between distilled spirits in cans and distilled spirits in containers other than cans resulted from rulemaking in the early 1990s. On September 27, 1991, TTB's predecessor, the Bureau of Alcohol, Tobacco, and Firearms (ATF), proposed differentiating between cans and containers other than cans in ATF Notice No. 725 published in the Federal Register at 56 FR 49152). There, ATF explained its view at that time that approving both 375 and 355 milliliter containers for distilled spirits would be misleading for consumers because of how close together the sizes were. However, ATF also recognized that because 355 milliliters was not an approved size, it prevented utilization of one of the most common can sizes. ATF proposed to create mutually exclusive categories of distilled spirits containers, cans and containers other than cans, with separate standards of fill authorized for each, “. . .based on the belief that cans are sufficiently distinct from other types of [distilled spirits containers], in both shape and design, so that a different standard of fill would not be confusing to the consumer.” This proposal was adopted in the final rule published in the Federal Register on July 14, 1992, at 57 FR 31126.

TTB is soliciting comments on whether it should maintain a distinction between cans and containers other than cans. In particular, TTB is interested in comments on whether the distinction serves a purpose consistent with the conclusions drawn in the 1991 rulemaking, that is, that, in some instances, the size in combination with the type of container (can versus containers other than can) serves the purpose of preventing consumer deception, and the distinction is needed to prevent consumer deception regarding the product or quantity of the product in the container, consistent with TTB's mandate under the FAA Act described above in the Authority section.

C. Additional Authorized Standards of Fill for Wine

TTB received several comments requesting the approval of six standards of fill for wine that were not proposed in Notice No. 210, including 600, 545.5, and 473 milliliter sizes. These standards of fill are discussed below.

One commenter also asked for the approval of wine in 1/6-barrel, 50-liters, and 1/2-barrel sizes. Regarding these sizes, TTB notes that the TTB regulations do not define a specific volume for a “barrel” of wine and that wine containers exceeding 18 liters need not conform to the standards of fill. See 27 CFR 4.70(b)(2). Moreover, the regulations at 27 CFR 4.72(b) provide that wine may be packaged in containers of 4 liters or more if the containers are filled in quantities of even (or whole) liters (for example 4, 5, or 6 liters).

600 Milliliters

TTB received a comment from an individual winemaker noting that some wines produced in foreign countries are required to be exported in 600 [milliliter] containers and that “. . .consumers are missing out on exploring [these] wines. . .”

545 and 473 Milliliters

The American Cider Association (ACA) requested approval of 545 and 473 milliliter sizes (equivalent to 19.2 and 16 ounces respectively), noting that both are already commonly used for similar products that are not required to conform to TTB standards of fill. These include ciders under 7 percent alcohol by volume and apple-flavored malt beverages sold in cans. The ACA also noted that these additional sizes would increase packaging options for industry members faced with container sourcing challenges. The ACA also points to aspects of cider making that lead to levels of alcohol by volume very near to thresholds for determining compliance with the standards of fill (that is, very near the threshold of 7 percent alcohol by volume). That complication can affect planned packaging as a producer may not know whether their product will be under the 7 percent alcohol by volume threshold until it is ready to be bottled.

Public Participation

Comments Invited

TTB invites comments from interested members of the public on the additional distilled spirits and wine standards of fill and the removal of the distinction between standards of fill for distilled spirits in cans and those in containers other than cans, as submitted through comments on Notice No. 210 and described in this document. TTB also welcomes comments on any other aspect of the proposals under consideration, including all amendments proposed in Notice No. 210. TTB would be particularly interested in any comments from consumers or others providing evidence of relevant consumer understanding in order to consider the extent of potential consumer deception with respect to distilled spirits and wine products and the quantities of the products, as contemplated by the statutory bases for the standards of fill. Please provide any specific information in support of your comments.

Please note that those who previously submitted comments to Notice No. 210 do not need to resubmit those comments for consideration. TTB is still considering all comments received in response to Notice No. 210, not only those summarized in this document, and will address all comments in any subsequent final rule.

Submitting Comments

You may submit comments on this proposal as an individual or on behalf of a business or other organization via the Regulations.gov website or via postal mail, as described in the ADDRESSES section of this document. Your comment must reference Notice No. 210A and must be submitted or postmarked by the closing date shown in the DATES section of this document. You may upload or include attachments with your comment. You also may submit a comment requesting a public hearing on this proposal. The TTB Administrator reserves the right to determine whether to hold a public hearing. If TTB schedules a public hearing, it will publish a notice of the date, time, and place for the hearing in the Federal Register .

Confidentiality and Disclosure of Comments

All submitted comments and attachments are part of the rulemaking record and are subject to public disclosure. Do not enclose any material in your comments that you consider confidential or that is inappropriate for disclosure.

TTB will post, and you may view, copies of this document, the original notice of proposed rulemaking, supporting materials, and any comments TTB receives about this proposal within the related Regulations.gov docket, TTB-2022-0004. In general, TTB will post comments as submitted, and it will not redact any identifying or contact information from the body of a comment or attachment.

Please contact TTB's Regulations and Rulings Division by email using the web form available at https://www.ttb.gov/contact-rrd, or by telephone at 202-453-2265, if you have any questions regarding how to comment on this proposal or to request copies of this document, its supporting materials, or the comments received in response.

Regulatory Analysis and Notices

Regulatory Flexibility Act

TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. If adopted, the amendments would provide bottlers and importers of wine and distilled spirits with additional flexibility to use new bottle sizes if they so choose. The proposed regulation would impose no new reporting, recordkeeping, or other administrative requirement. Therefore, no regulatory flexibility analysis is required.

Paperwork Reduction Act

The collection of information in this proposed rule has been previously approved by the Office of Management and Budget (OMB) under the title “Labeling and Advertising Requirements Under the Federal Alcohol Administration Act,” and assigned control number 1513-0087. This proposed regulation would not result in a substantive or material change in the previously approved collection action, since the nature of the mandatory information that must appear on labels affixed to the container remains unchanged.

Executive Order 12866

This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

[FR Doc. 2024-20237 Filed 9-6-24; 8:45 am]

BILLING CODE 4810-31-P