[Federal Register Volume 70, Number 234 (Wednesday, December 7, 2005)]
[Proposed Rules]
[Pages 72731-72733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23680]
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DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade Bureau
27 CFR Parts 4, 5, and 7
[Notice No. 53]
RIN 1513--AB16
Use of the Word ``Pure'' or Its Variants on Labels or in
Advertisements of Alcohol Beverage Products; Request for Public Comment
AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau is considering
amending the regulations concerning the use of the word ``pure'' on
labels or in advertisements of alcohol beverage products. We wish to
gather information by inviting comments from the public and industry as
to whether the existing regulations should be revised.
DATES: We must receive written comments on or before February 6, 2006.
ADDRESSES: You may send comments to any one of the following addresses:
Director, Regulations and Rulings Division, Alcohol and
Tobacco Tax and Trade Bureau, Attn: Notice No. 53, P.O. Box 14412,
Washington, DC 20044-4412.
202-927-8525 (facsimile).
[email protected] (e-mail).
http://www.ttb.gov/alcohol/rules/index.htm (an online
comment form is posted with this notice on our Web site).
http://www.regulations.gov (Federal e-rulemaking portal;
follow instructions for submitting comments).
You may view copies of this advance notice and any comments we
receive on this notice by appointment at the TTB Library, 1310 G
Street, NW., Washington, DC 20220. To make an appointment, call 202-
927-2400. You may also access copies of the advance notice and comments
online at http://www.ttb.gov/alcohol/rules/index.htm.
See Section VI of this notice for specific instructions and
requirements for submitting comments and for information on how to
request a public hearing.
FOR FURTHER INFORMATION CONTACT: Lisa M. Gesser, Regulations and
Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box
128, Morganza, MD 20660; (301) 290-1460.
SUPPLEMENTARY INFORMATION:
I. Authority to Prescribe Alcohol Beverage Labeling and Advertising
Regulations
Sections 105(e) and 105(f) of the Federal Alcohol Administration
Act (FAA Act), codified in the United States Code at 27 U.S.C. 205(e)
and 205(f), set forth standards for the regulation of the labeling and
advertising of distilled spirits, wine (at least 7 percent alcohol by
volume), and malt beverages, generally referred to as ``alcohol
beverage products'' throughout this document. These sections give the
Secretary of the Treasury the authority to issue regulations to prevent
deception of the consumer, to provide the consumer with ``adequate
information'' as to the identity and quality of the product, and to
prohibit false or misleading statements on product labels and in
advertisements. Additionally, these FAA Act provisions give the
Secretary the authority to prohibit, irrespective of falsity,
statements relating to age, manufacturing processes, analyses,
guarantees, and scientific or irrelevant matters which are likely to
mislead the consumer. In the case of malt beverages, the labeling and
advertising provisions of the FAA Act apply only if the laws of the
State into which the malt beverages are to be shipped impose similar
requirements. The Alcohol and Tobacco Tax and Trade Bureau (TTB) is
responsible for the administration of the FAA Act and the regulations
promulgated under it. The labeling and adverting regulations for wine,
distilled spirits, and malt beverages are codified in title 27 of the
Code of Federal Regulations (CFR), parts 4, 5, and 7, respectively.
II. Current Regulatory Standards
Sections 5.42(b)(5) and 5.65(a)(8) of the TTB regulations (27 CFR
5.42(b)(5) and 5.65(a)(8)), hereinafter referred to collectively as the
``pure regulations,'' currently state that the word ``pure'' may not be
used on distilled spirits labels or in advertisements unless:
It refers to a particular ingredient used in the
production of the distilled spirits, and is a truthful representation
about the ingredient; or
It is part of the bona fide name of a permittee or
retailer for whom the distilled spirits are bottled; or
It is part of the bona fide name of the permittee who
bottled the distilled spirits.
TTB considers variants of the word ``pure'' such as ``purest,''
``purity,'' and ``pureness'' to fall within the purview of these
regulations. These prohibitions apply only to distilled spirits. There
are no similar prohibitions on the use of the
[[Page 72732]]
word ``pure'' in the labeling or advertising of wine or malt beverages.
III. Regulatory History Concerning the Use of ``Pure'' on Distilled
Spirits Labels and in Advertisements
TTB and its predecessor agencies have had a regulation in force
concerning the word ``pure'' since the 1930s. The original regulation
was first published on April 2, 1936 (1 FR 92), and provided that
labels and advertisements of distilled spirits shall not contain the
word ``pure'' except as part of the bona fide name of a permittee or a
retailer for whom the distilled spirits are bottled. This regulation,
as well as additional regulations governing the labeling and
advertising of distilled spirits, was codified into 27 CFR part 5.
On April 22, 1936, the Treasury Department published a notice of
hearing with reference to proposed amendments to the distilled spirits
regulations. Included among the proposed amendments were possible
amendments to the regulations prohibiting the word ``pure'' on
distilled spirits labels and in advertisements. On May 15, 1936, the
Treasury Department conducted the hearings. During the hearings,
Treasury's Assistant General Counsel, John E. O'Neill, stated that the
``ordinary man'' regarded the word ``pure'' as denoting that the
product is wholesome, free from adulterants, free from harmful
ingredients, and not deleterious to a person's health. O'Neill further
argued that if a product were permitted to be called ``pure'' consumers
would regard it as meeting that definition. Others testified against
the prohibition of the word ``pure'' with respect to its use to
describe certain types of whisky. One individual testified that while
he was satisfied with the regulations prohibiting the word ``pure'' on
labels and in advertisements, he did not believe that the word ``pure''
described a healthful commodity. Rather, he believed the word ``pure''
would refer to whether the product had been adulterated with some other
material. Another testified that to the average person the word
``pure'' denotes quality and that those seeking to use it have the
desire to distinguish between the quality of one product over another.
Upon the conclusion of the hearings concerning the regulations in part
5, the prohibition of the word ``pure'' remained unchanged.
The prohibition of the word ``pure'' on distilled spirits labels
and in advertisements was raised for reconsideration on November 21,
1978, when the Bureau of Alcohol, Tobacco and Firearms (ATF), TTB's
predecessor agency, published an advance notice of proposed rulemaking,
Notice No. 313, in the Federal Register (43 FR 54266). The purpose of
Notice No. 313 was to obtain input from industry members and the
general public concerning the advertising provisions of the FAA Act,
and it suggested specific topics within 27 CFR parts 4, 5, and 7, which
ATF was considering changing. Among these topics, ATF considered
changing the total prohibition of the use of the term ``pure.'' Of
those that commented directly on the pure regulations, fourteen
commenters were equally divided on whether to allow the term ``pure''
to be used or not. Two other commenters favored its use on straight
whiskeys only, while one commenter favored deleting the particular
sections prohibiting its use (Sec. 5.42(b)(5) and Sec. 5.65(a)(8))
and, instead, prohibiting its use under false or misleading statements
(Sec. 5.42(a)(1) and Sec. 5.65(a)(1)). Three commenters stated that
alcohol beverages were not pure, and that the use of the word ``pure''
as applied to alcohol beverages was misleading. Various regulatory
definitions for ``pure'' suggested by commenters were viewed by ATF as
too broad or vague to be of any assistance.
On December 19, 1980, ATF published a notice of proposed
rulemaking, Notice No. 362 (45 FR 83530), proposing to lift the total
restriction against the use of the term ``pure,'' among other
proposals. The notice stated:
Historically, the Bureau has prohibited the use of pure when it
refers to a distilled spirits product. However, with current
consumer awareness and understanding, the Bureau believes that its
present restrictive position is unnecessary when such terms used are
truthful and not misleading. Therefore, the Bureau is proposing to
lift the total restriction against the use of the term ``pure.'' For
example, the Bureau will allow its use when referring to the water
used in producing the distilled spirits. However, the Bureau is
particularly interested in comments on this issue.
Sixteen commenters responded concerning this issue, with 12
supporting ATF's proposal. Two commenters who supported the use of
``pure'' stated that it should refer to particular ingredients only,
not the finished distilled spirits product.
On August 8, 1984, ATF issued TD-180 (49 FR 31667), which, among
other changes, amended the distilled spirits labeling and advertising
regulations to modify the pure regulation to reflect its present
content. The language in the preamble to the regulatory amendments
explains the reasoning for the relaxation of the prohibition of the
word ``pure:''
ATF believes that when the word ``pure'' reflects a truthful
statement about a particular ingredient, such as ``pure water,'' it
should be allowed to be stated. However, the word ``pure'' may not
be used to describe the finished product, such as ``pure gin.''
Therefore, ATF is amending the regulations to allow for such
statements and claims on labels and in advertisements of distilled
spirits. Further, the present use of ``pure'' when it is part of the
bona fide name of a permittee or retailer for whom the distilled
spirits are bottled is retained. One commenter suggested that the
word ``pure'' should be allowed to appear in the name of the
permittee who bottles the distilled spirits. ATF has no objection to
this and is amending the regulation accordingly.
IV. Recent Enforcement Activities and Challenges to the Pure
Regulations
After receiving a complaint concerning advertisements of distilled
spirits products boasting purity claims, TTB undertook a project to
identify and contact distilled spirits industry members that were using
the word ``pure'' or its variants in their advertising. TTB has found
that the use of pure terminology in advertising (and in some labeling)
appears to be confined exclusively to clear spirits such as vodka and
gin. Within that sector, TTB has found that its use is widespread. TTB
has sent letters stating the Bureau's policy to over 20 different
distilled spirits industry members regarding their website advertising
of 26 different distilled spirits products.
As a result of the letters, some industry members raised questions
about the pure regulations as well as TTB's policy that extends the
regulations to include variants of the word ``pure.'' The following
summarizes the principal arguments we received:
The plain language of the regulation at 27 CFR 5.65(a)(8)
prohibits the use of the word ``pure'' only, and does not extend to
variations on the word ``pure'' such as ``purest'' or ``purity.'' Other
sections in the distilled spirits advertising regulations that prohibit
certain words and variations of the prohibited words do so by using
phrases such as ``synonymous terms'' or ``similar terms.'' The lack of
such terms in the pure regulation evidences the intent to limit the
regulation to the word ``pure'' only.
Certain vodkas are pure in the general sense of the term
and therefore the statements are not misleading and are protected by
the First Amendment to the U.S. Constitution.
Even though distilled spirits contain some impurities,
other commodities, such as beer and wine, also contain impurities and
TTB regulations do not prohibit use of the
[[Page 72733]]
term ``pure'' as it relates to those commodities.
V. Request for Comments
TTB is considering whether to amend the regulations concerning the
use of the word ``pure'' or its variants in the labeling and
advertising of alcohol beverage products. To assist TTB in identifying
and implementing the best course of action, we wish to gather
information by inviting comments from the public and industry as to
how, if at all, the existing regulations should be amended. In addition
to general comments on the issue, we are seeking comments on the
following specific questions.
A. What does the general public consider the word ``pure'' to mean
when used on labels and in advertisements of alcohol beverage products?
Does its use convey information to the consumer about the identity and
quality of the product? Does its use convey information about the
alcohol content of a product?
B. TTB considers variants of the word ``pure'' such as
``pureness,'' ``purest,'' and ``purity'' to fall within the purview of
the pure regulations. Are these variants misleading and, if so, should
TTB amend the regulations to prohibit their use? Should TTB limit the
scope of the pure regulations to the word ``pure'' only?
C. Would the use of terms or claims such as ``pure vodka,'' ``pure
whisky,'' ``vodka with exceptional purity'' on distilled spirits labels
and in advertisements mislead consumers? Would the use of similar terms
or claims on wine and malt beverage products mislead consumers?
D. Should TTB amend the pure regulations to allow the use of the
word ``pure'' and its variants on distilled spirits labels and in
advertisements if the statements are truthful? How can TTB substantiate
the truthfulness of such claims? How should pure be defined?
E. Should TTB permit the use of the word ``pure'' or its variants
on distilled spirits product labels and in advertisements if those
products meet a certain standard? If so, what should that standard be?
F. What would be the impact of allowing the use of these terms?
G. Should TTB prohibit the use of the word ``pure'' and its
variants on labels and in advertisements for malt beverages and wine
products? Why or why not?
VI. Submitting Comments
Please submit your comments by the closing date shown above in this
notice. Your comments must include this notice number and your name and
mailing address. Your comments must be legible and written in language
acceptable for public disclosure. We do not acknowledge receipt of
comments, and we consider all comments as originals. You may submit
comments in one of five ways:
Mail: You may send written comments to TTB at the address
listed in the ADDRESSES section.
Facsimile: You may submit comments by facsimile
transmission to 202-927-8525. Faxed comments must--
(1) Be on 8.5 by 11-inch paper;
(2) Contain a legible, written signature; and
(3) Be no more than five pages long. This limitation assures
electronic access to our equipment. We will not accept faxed comments
that exceed five pages.
E-mail: You may e-mail comments to [email protected]. Comments
transmitted by electronic mail must--
(1) Contain your e-mail address;
(2) Reference this notice number on the subject line; and
(3) Be legible when printed on 8.5 by 11-inch paper.
Online form: We provide a comment form with the online
copy of this notice on our Web site at http://www.ttb.gov/alcohol/rules/index.htm. Select the ``Send comments via e-mail'' link under
this notice number.
Federal e-Rulemaking Portal: To submit comments to us via
the Federal e-rulemaking portal, visit http://www.regulations.gov and
follow the instructions for submitting comments.
You may also write to the Administrator before the comment closing
date to ask for a public hearing. The Administrator reserves the right
to determine, in light of all circumstances, whether to hold a public
hearing.
Confidentiality
All submitted material is part of the public record and subject to
disclosure. Do not enclose any material in your comments that you
consider confidential or inappropriate for public disclosure.
Public Disclosure
You may view copies of this advance notice, the petitions, and any
comments we receive by appointment at the TTB Library at 1310 G Street,
NW., Washington, DC 20220. You may also obtain copies at 20 cents per
8.5 by 11-inch page. Contact our librarian at the above address or
telephone 202-927-2400 to schedule an appointment or to request copies
of comments.
For your convenience, we will post this advance notice and any
comments we receive on this proposal on the TTB Web site. We may omit
voluminous attachments or material that we consider unsuitable for
posting. In all cases, the full comment will be available in the TTB
Library. To access the online copy of this notice, visit http://www.ttb.gov/alcohol/rules/index.htm. Select the ``View Comments'' link
under this notice number to view the posted comments.
VII. Drafting Information
Lisa M. Gesser and Joanne C. Brady of the Regulations and
Procedures Division drafted this advance notice.
Signed: September 29, 2005.
John J. Manfreda,
Administrator.
Approved: November 3, 2005.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).
[FR Doc. 05-23680 Filed 12-6-05; 8:45 am]
BILLING CODE 4810-31-P