Rule2025-00271
Standards of Fill for Wine and Distilled Spirits
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 10, 2025
Effective
January 10, 2025
Issuing agencies
Treasury DepartmentAlcohol and Tobacco Tax and Trade Bureau
Abstract
This final rule amends the Alcohol and Tobacco Tax and Trade Bureau (TTB) regulations that govern wine and distilled spirits containers to add 13 standards of fill for wine and 15 for distilled spirits. TTB is also amending its regulations to eliminate the distinction between standards of fill for distilled spirits in cans and those for distilled spirits in containers other than cans. TTB had also proposed to generally eliminate the standards of fill for wine and distilled spirits, as an alternative to approving specific new standards of fill. Upon careful consideration of comments received, however, TTB is not adopting that proposal at this time. The amendments described in this final rule respond to industry member requests for additional flexibility to use a wider range of container sizes and are expected to facilitate the movement of goods in domestic and international commerce while also providing consumers broader purchasing options.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 6 (Friday, January 10, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 6 (Friday, January 10, 2025)]
[Rules and Regulations]
[Pages 1868-1876]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00271]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade Bureau
27 CFR Parts 4, 5, and 24
[Docket No. TTB-2022-0004; T.D. TTB-200; Re: Notice Nos. 210 and 210A]
RIN 1513-AC86
Standards of Fill for Wine and Distilled Spirits
AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.
ACTION: Final rule; Treasury decision.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Alcohol and Tobacco Tax and Trade
Bureau (TTB) regulations that govern wine and distilled spirits
containers to add 13 standards of fill for wine and 15 for distilled
spirits. TTB is also amending its regulations to eliminate the
distinction between standards of fill for distilled spirits in cans and
those for
[[Page 1869]]
distilled spirits in containers other than cans. TTB had also proposed
to generally eliminate the standards of fill for wine and distilled
spirits, as an alternative to approving specific new standards of fill.
Upon careful consideration of comments received, however, TTB is not
adopting that proposal at this time. The amendments described in this
final rule respond to industry member requests for additional
flexibility to use a wider range of container sizes and are expected to
facilitate the movement of goods in domestic and international commerce
while also providing consumers broader purchasing options.
DATES: This final rule is effective January 10, 2025.
FOR FURTHER INFORMATION CONTACT: Caroline Hermann, Alcohol and Tobacco
Tax and Trade Bureau, Regulations and Rulings Division; telephone 202-
453-2265.
SUPPLEMENTARY INFORMATION:
I. Background
A. TTB 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 standards of fill 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,\1\ 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 bulk'' which is defined as containers over one wine
gallon.
---------------------------------------------------------------------------
\1\ Sections 5041(e) and 5368 of the IRC also provide the
Secretary the authority to set forth tax tolerances for containers
of wine products.
---------------------------------------------------------------------------
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 Sec. 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:
<bullet> 1.8 Liters.
<bullet> 1.75 Liters.
<bullet> 1 Liter.
<bullet> 900 mL.
<bullet> 750 mL.
<bullet> 720 mL.
<bullet> 700 mL.
<bullet> 375 mL.
<bullet> 200 mL.
<bullet> 100 mL.
<bullet> 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 Sec. 5.203 authorizes the use of
the following metric standards of fill:
<bullet> 355 mL.
<bullet> 200 mL.
<bullet> 100 mL.
<bullet> 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 Sec. 5.203(a)(2) as ``cans.''
In addition to the metric standards specified above, Sec. 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 Sec. 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 Sec. 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:
<bullet> 3 liters;
<bullet> 1.5 liters;
<bullet> 1 liter;
<bullet> 750 milliliters;
<bullet> 500 milliliters;
<bullet> 375 milliliters;
<bullet> 355 milliliters;
<bullet> 250 milliliters;
<bullet> 200 milliliters;
<bullet> 187 milliliters;
<bullet> 100 milliliters; and
<bullet> 50 milliliters.
Paragraph (b) of Sec. 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. Notices of Proposed Rulemaking
A. Notice No. 210
On May 25, 2022, TTB published 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. The 10 standards of fill proposed
for wine were: 2.25 and 1.8 liters; and 720, 700, 620, 550, 360, 330,
300, and 180 milliliters. TTB also proposed to eliminate all but a
minimum and maximum standard of fill for distilled spirits but did not
propose to authorize any specific standards of fill for distilled
spirits as an alternative.
The proposed rule followed, and took into consideration, a
Department of the Treasury report on competition in the markets for
alcohol beverages 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 <a href="https://home.treasury.gov/system/files/136/Competition-Report.pdf">https://home.treasury.gov/system/files/136/Competition-Report.pdf</a>. That report (referred to in this document as
the ``Competition Report''), which was 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
[[Page 1870]]
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.
B. Notice No. 210A
Because TTB received comments that requested amendments beyond the
scope of the original request, and recognizing that these requests
should be considered in the context of the proposals in Notice No. 210,
TTB issued Notice No. 210A on September 9, 2024 (89 FR 73050), which
reopened the comment period on Notice No. 210. In Notice No. 210A, TTB
specifically requested comments on whether to authorize the following
new standards of fill for distilled spirits: 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. TTB
also requested comments on whether it should maintain the current
distinction between standards of fill authorized for distilled spirits
in cans and those authorized for distilled spirits in containers other
than cans. TTB noted its particular interest in comments regarding
whether the distinction, that is, whether the size in combination with
the type of container, serves the purpose of preventing consumer
confusion or preventing consumer deception consistent with TTB's
mandate under the FAA Act. TTB also specifically requested comments on
whether to authorize the following new standards of fill for wine: 600
milliliters, 19.2 oz, and 16 oz.\2\
---------------------------------------------------------------------------
\2\ Notice 210A erroneously listed the metric equivalent of 19.2
oz for wine as 545.5 milliliters, rather than 568 milliliters,
reflecting a submission by the American Cider Association and the
conversion factor for imperial ounces instead of U.S. fluid ounces.
Comment responses addressed the 19.2 oz size and, where applicable,
showed that readers generally understood the proposal to be for U.S.
ounces as TTB intended. This final rule uses the appropriate
conversion factor to establish the metric equivalent in the
regulations.
---------------------------------------------------------------------------
The comment period for Notice No. 210A closed on October 9, 2024.
III. Comments on Notices No. 210 and 210A
A. General
In response to Notice No. 210A, TTB received 123 comments. In
total, on Notices No. 210 and 210A, TTB received a total of 199
comments. Commenters included national and international trade
associations, members of Congress, representatives of foreign
governments, representatives of the glass container industry,
individuals, and alcohol beverage industry members.
In addition to comments on particular proposed sizes and the
proposal to generally eliminate the standards of fill, discussed
further below, TTB received many comments that expressed general views
on the standards of fill, either favoring or disfavoring TTB actions,
but without reference to the technical aspects of the regulation.
In favor of amending the regulations, one individual commenter
explained that it was ``common sense to adjust this outdated and
arbitrary regulation.'' (Comment 11) Others articulated the benefits of
expanding the standards of fill generally, i.e., independent of whether
that was achieved through elimination or the addition of specific sizes
(or groups of sizes). For example, one individual stated that expansion
into ``larger sizes'' would ``reduce waste and garbage and recycling
burdens and increase productivity and profitability while reducing
prices for consumers . . . a win-win-win for the triple bottom line.''
(Comment 129) Another individual expressed that not allowing ``critical
single serve sizes puts wine and cider at an unfair disadvantage.''
(Comment 128) Similarly, several commenters, for example Benny Boy
Brewing (Comment 112), urged TTB to incorporate its proposed changes,
but without referencing a specific size or approach.
Many commenters also expressed their general opposition to any
changes at all, for example Bear Creek Winery (Comment 14) stated that
TTB's proposal ``does not address any issues'' and expressed that they
``do not wish to add any additional fill sizes to what is already
approved.'' Other commenters expressed that it seemed too soon to
revisit the standards of fill given that TTB had recently amended them
in 2020. Some commenters opposed the addition of any new standards on
business and environmental grounds, such as the Mexican Chamber of the
Tequila Industry (comment 165) who explained their view that, ``The
introduction of a wide range of bottle sizes would present significant
challenges to forecasting demand and managing inventory levels,
potentially leading to increased costs and inefficiencies, particularly
for smaller tequila producers who may have limited resources to adapt
to such changes,'' and that ``[s]tandardized sizes have generated
significant environmental benefits by promoting efficiency in
production and packaging.''
B. Comments on the Proposed Elimination of the Standards of Fill
Of the 199 total comments TTB received in response to Notices No.
210 and 210A, approximately a third of the comments address the
proposal to generally eliminate the standards of fill. Approximately a
fifth of the comments support eliminating the standards of fill for
distilled spirits, wine, or both. Several comments express a preference
for eliminating the standards of fill but state that approving certain
new sizes would be an acceptable alternative. A total of 30 comments
specifically oppose eliminating standards of fill for distilled spirits
and/or wine.
Commenters supporting the elimination of the standards of fill
generally state that the standards are unnecessary, restrictive to
producers, and out-of-date. They note that there are no standards of
fill for malt beverages or for other consumer products. One distilled
spirits producer, Endless West, notes that it regularly encounters
challenges posed by the limitations of the standards of fill, and that
these limitations reduce competition, inhibit packaging innovations
which in turn constrain the industry member's ability to introduce new
sizes to meet customer demands, and constrain industry members' efforts
to improve profit margins, supply chain efficiencies, and environmental
sustainability. The comment goes on to state that consumers are capable
of reading the net contents on a label and making rational purchasing
decisions in light of existing labeling regulations. Other
[[Page 1871]]
commenters also contend that eliminating the standards of fill will
result in lower costs for producers, will facilitate international
trade, and will provide consumers with more options in beverage alcohol
packaging. A commenter identified as Texas Vine Country states that
eliminating standards of fill would, among other things, allow for
harmonization with international packaging sizes, take advantage of
available glass/container sizes, encourage responsible drinking by
tailoring packaging size more closely to consumer's desired serving
sizes, reduce wasted beverages by consumers due to arbitrary packaging
sizes, and allow for new and innovative packaging that protects the
beverage quality and is more efficient to transport and store.
Several commenters that support eliminating the standards of fill
say that the reasons for them no longer apply or that TTB lacks
authority under current circumstances to mandate them. Tincknell &
Tincknell, a wine sales and marketing consultant, states that the
standards relate to tax collection and ``post-Prohibition era criminal
behavior'' that are no longer relevant. The National Federation of
Independent Businesses asserts that statements made in the February
2022 Competition Report show that TTB cannot justify maintaining its
standards of fill regulations under the relevant statutory authority in
the IRC and FAA Act.
Several commenters favor eliminating the standards of fill but
state that adding one or more of the proposed sizes would be an
acceptable option. While noting similar reasons as those described
above for supporting the elimination of standards of fill, these
commenters stated that in the event the standards of fill are retained,
adding specific new sizes would still provide benefits to producers and
consumers. A number of these commenters referencing cider products
specifically requested approval of 16 ounce and 19.2 ounce sizes for
wine, while other commenters referencing ``ready-to-drink'' cocktails
(often referred to as RTDs) specifically requested approval of the 475
ml and 570 ml sizes for distilled spirits in metal cans. These are
addressed in the comment summaries related to specified sizes below.
Commenters opposing the elimination of the standards of fill cite a
number of reasons to retain the standards. The most often cited reason
is that the standards of fill prevent consumer confusion. The Wine
Institute (Comment 43) stated that the standards of fill do as intended
by preventing consumer confusion and deception that would otherwise
exist if there was a limitless array of alcohol beverage container
sizes in the marketplace. The Wine Institute stated that it ``has had
discussions with state Attorneys General who have expressed concerns
about the ability of packaging and sizing to deceive consumers.'' One
concern is the difficulty in cost comparison and the potential for
``shrinkflation,'' when the packaging size and amount of product is
reduced while the price remains the same, and the comment goes on to
raise concerns with the small differences between some of the proposed
container sizes compared with the existing standards of fill.
Similarly, Fox Run Vineyards states that removing the standards of fill
opens up the opportunity for consumer deception, citing how small
differences in bottle sizes may result in less product provided for the
same price. Milestone Brands, LLC, a producer and marketer of spirits-
based products (Comment 72) states that it is ``the best option on
balance for consumers'' and that retaining the standards of fill
requirements while allowing for new sizes will maintain sizes that are
``recognizable and familiar'' to consumers while providing additional
consumer choice and ensuring that ``order is maintained in the
marketplace.''
Other commenters claim that the standards of fill requirements have
been in place for decades and have not caused a significant burden on
industry members. For example, the Distilled Spirits Council of the
United States (Comment 59) states: ``Having standard sizes codified in
the regulations supports investment in modern packaging and bottling
equipment, which promotes efficiency, cost savings, and economies of
scale as the number of necessary bottle sizes, labels, and machinery
parts are reduced.'' Representatives Mike Thompson and Dan Newhouse,
co-chairs of the Congressional Wine Caucus (Comment 51), express
concern that eliminating the standards of fill could cause
``[s]ignificant disruption to business operations as producers,
distributors, and retailers struggle to adapt business operations to
accommodate a proliferation of container sizes.''
Commenters also argued that eliminating the standards of fill will
result in conflicting State requirements. These commenters report that
a number of States defer to the Federal standard of fill requirements,
so elimination could result in a patchwork of different State rules. As
the Washington Wine Institute (Comment 62) states, a proliferation of
new rules ``will create serious disruption to business as wineries
would have to overhaul their sales, marketing, and compliance models to
adjust to . . . varying state regulations.'' A comment from the
Colorado Wine Industry Development Board (Comment 69) echoes this view
that eliminating standards of fill, or adding any new standards of fill
for wine, will cause unnecessary consumer confusion, significant
disruption to business operations, difficulty for producers' compliance
across State lines, and unnecessary expenditure of State resources to
create standards in lieu of the Federal standards. Also addressing the
wine industry specifically, the Wine Institute asserts that the Federal
framework for standards of fill creates a uniform system that allows
wineries to comply with one national system of regulations and that
eliminating the Federal standards will result in unnecessary business
disruption. The comment goes on to assert that Federal uniformity
enhances competition by providing stability and, noting that eight
States currently have statutorily required standards of fill that have
presented ongoing challenges to the industry, the Wine Institute
asserts that it is in the best interest of the wine industry and
consumers to have consistency rather than different State rules that
allow for differing sizes to be offered in different marketplaces.
While some commenters supporting eliminating the standards of fill
assert that doing so will allow greater flexibility for small
businesses, others that oppose eliminating the standards of fill assert
that maintaining the standards of fill levels the playing field for
suppliers of all sizes. In its comment, the Wine Institute states that
eliminating the standards of fill ``will result in an unknown number of
alternative sizes and bottle types that will put small and mid-sized
suppliers at a competitive disadvantage because every different
container size will require a different bottling run with accompanying
costs that cannot be spread over a large number of units.
C. Comments Regarding the Addition of Specific Sizes
1. Wine
Notice Nos. 210 and 210A together solicited comments on adding a
combined total of 13 authorized standards of fill for wine. A
significant portion of comments address one or more of the proposed new
sizes for wine containers. One of the comments, from the Washington
Wine Institute (Comment 62), supports limited authorization of new
sizes, but only if
[[Page 1872]]
the requests come from ``a large segment of the wine industry, and not
just one or two producers or importers.''
Commenters expressed both support and opposition for the addition
of specific petitioned-for sizes for wine as follows:
a. 2.25 Liters
As explained in Notice No. 210, TTB received a petition from an
importer of boxed wine requesting that the agency authorize a standard
of fill of 2.25 liters for wine containers. The importer stated that
such a container would significantly reduce the environmental impact of
wine packaging because it holds as much as three 750-milliliter wine
bottles at half the weight of such bottles.
Three commenters (two individuals and Bobo Wine, LLC--Comments 13,
186, and 185, respectively) specifically support approval of a 2.25-
liter size. The commenters generally state that this size would enhance
the availability of boxed wines, which they note has environmental
benefits, and would be a convenient size for consumers, since it is the
equivalent of three standard wine bottles.
b. 1.8 Liters and 720, 550, 360, 300 and 180 Milliliters
In prior rulemaking, including T.D. TTB-165 (December 29, 2020, 85
FR 85514) and Notice Nos. 210 and 210A, TTB described an agreement
between the United States and Japan that included a commitment for the
United States to engage in rulemaking to propose the addition of
specific new standards of fill and to take final action on that
rulemaking. These six sizes were among those that the United States
agreed to consider in rulemaking under a Side Letter agreement with
Japan, dated October 7, 2019, which was part of a larger agreement
between the United States and Japan agreed to on that same day.
Three commenters specifically support these six sizes: the National
Tax Agency of Japan (Comment 26), the Japan Spirits and Liqueurs Makers
(Comment 27), and the Japan Wineries Association (Comment 28). These
commenters did not provide additional information beyond expressing
support for these sizes. An additional commenter who identified
themselves as a U.S. wine importer (Comment 2) also supports the 720
milliliter size to facilitate the importation of certain wines from
Italy.
Some commenters expressed concern about one or more of these sizes.
For example, the Colorado Wine Industry Development Board (comment 69)
expressed concerns about approving sizes that are ``nearly but not
quite identical to the existing standards'' because consumers might
purchase a 720-milliliter container thinking it was the existing 750
milliliter size or a 300 milliliter container thinking it was the
existing 375 milliliter size.
c. 700 Milliliters
TTB had proposed a 700 milliliter size in Notice No. 210 in
response to inquiries from foreign governments in 2007 and a comment on
a 2019 notice of rulemaking addressing standards of fill for wine
(Notice No. 182, 84 FR 31257). One individual commenter (comment 13)
supports this size noting that prohibiting this size ``denies American
consumers high quality wines and hurts American import and retail
businesses . . . .''
Some commenters, such as Fern Valley Vineyards, oppose authorizing
700 milliliter containers for wine due to the potential for consumer
confusion. The commenter states that consumers would have trouble
distinguishing between the slightly smaller and therefore less
expensive 700 milliliter containers, which are commonly used for
European wines, and the slightly larger and more expensive 750
milliliter containers, which are commonly used for domestic wines. As a
result, Fern Valley Vineyards believes domestic wines would be at a
disadvantage as consumers would choose the less expensive bottle
without realizing it contains less wine.
d. 620 Milliliters
As explained in greater detail Notice No. 210, TTB proposed a 620
milliliter size in response to inquiries over the years regarding the
importation of the French product known as ``vin jaune'' (``yellow
wine'' in English). Vin jaune is historically and currently bottled in
the 620 milliliters size so authorizing this container size would allow
U.S. importers to legally import the wine in its traditionally used
containers.
Several commenters specifically support authorizing a 620
milliliter size. Commenters include the French Federation of Wines and
Spirits Exporters (FEVS), the European Union, and the Comit[eacute]
Europ[eacute]en des Enterprises Vins. Most of these commenters state
that authorizing this size will allow the import of ``vin jaune'' from
France, which is traditionally bottled only in 620 milliliter
containers. FEVS (Comments 40 and 191) requests that TTB authorize this
size only for vin jaune. No commenters raised concerns specific to this
container size.
e. 600 Milliliters
TTB received one comment from a person identifying themselves as a
winemaker and former restaurant wine buyer (Comment 4), specifically
supporting approval of a 600-ml size noting that this size has ``become
important for many distributors and wholesale buyers'' and authorizing
it would allow American consumers to try wines from ``regions that are
required to use this size package.'' No commenters raised concerns
specific to this container size.
f. 568 Milliliters (19.2 oz.) and 473 Milliliters (16 oz.)
TTB proposed the addition of these container sizes in Notice No.
210A at the request of the American Cider Association (ACA) who noted
that both are already commonly used for similar products that are not
required to conform to TTB standards of fill.
Numerous commenters support authorization of 473 ml (16 oz) and 568
ml (19.2 oz) sizes. The majority of commenters represent individual
cideries and meaderies or cider and mead organizations, including the
American Mead Maker Association, the Vermont Cider Association, the New
York Cider Association, and the American Cider Association. Several
cider producers state that the rationale for authorizing the 16 oz and
19.2 oz sizes along with their metric equivalents is similar to the
rationale that was the basis for authorizing 355 milliliter (12 oz) can
size in 2020 (T.D. TTB-165, 85 FR 85514), that is, that these sizes are
commonly used and available for other products, including cider
products to which the standards of fill do not apply and their
customers want and expect that size, making it critical to their
commercial success. These producers note that, in the production of
cider, apples often naturally ferment to an alcohol by volume (abv)
level just above 7.4 percent, so producers often take steps to lower
the abv below 7 percent so that the standards of fill regulations will
not apply, enabling them to use readily available containers, such as
the 16 oz can that they could not use for products for which the abv is
7 percent or higher and the standards of fill apply. They state that
sugar levels in apples vary widely depending on climate and other
factors, making final alcohol levels difficult to predict. They argue
that being able to use readily available container sizes that can be
used for products not subject to the standards of fill, such as wine
products under 7 percent abv and malt beverages will eliminate this
uncertainty. Many
[[Page 1873]]
producers explained, as did Wolffer Estate Vineyard (comment 169), that
authorizing these sizes ``allows cideries and wineries to stay
competitive.'' No commenters raised concerns specific to this container
size.
g. 330 Milliliters
As explained in greater detail in Notice No. 210, after the
publication of T.D. TTB-165, TTB received a petition from a South
African wine exporter requesting the approval of 330 milliliters as a
standard of fill for wine. The petitioner stated that 330 milliliters
is the standard can size for beer and soda products in South Africa and
in most European countries.
Five commenters (Comments 13, 31, 32, 159, and 180) specifically
support approval of a 330 milliliter size. Commenters include Ikhaya
Wines LLC, Future Proof Brands, and Ball Corporation. Ikhaya Wines LLC
(Comments 31 and 32) expresses the belief that authorizing this size
will facilitate importing wines from South Africa, where 330
milliliters is a standard size for canned wines. Future Proof Brands
(Comment 159) states that authorizing this size will allow American
wine producers to expand their presence in European and Australian
markets, where these sizes are common.
The Colorado Wine Industry Development Board (comment 69) expressed
concerns about approving a 330 milliliter size noting that its
proximity to the existing 375 milliliter size could cause consumer
confusion.
2. Distilled Spirits
Notice No. 210A solicited comments on adding a total of 15
authorized standards of fill for distilled spirits that were raised in
comments responding to Notice No. 210. A large number of commenters
expressed support for the addition of specific sizes for distilled
spirits as follows:
a. Distilled Spirits in Both Cans and Containers Other Than Cans
i. 3.75 and 3 Liters
Several commenters specifically support authorizing 3.75-liter and
3-liter sizes including DISCUS, The American Distilled Spirits
Alliance, Milestone Brands, and FEVS. The American Distilled Spirits
Alliance (Comment 198) notes that these larger sizes would ``cater to
consumers who prefer to purchase in bulk for cost savings or long-term
use or who are conscious of their environment.''
ii. 2 Liters
Two commenters specifically support these sizes (Comments 149 and
197). The Distilled Spirits Council of the United States (DISCUS,
Comment 197) states that 2-liter containers for other beverages are
common in the United States, and consumers are already familiar with
this size.
iii. 1.5 Liters
Only one commenter (Comment 191) specifically supports this size.
In its comment, FEVS states that this size is currently allowed in
Europe.
iv. 500 Milliliters
Eleven commenters (Comments 5, 59, 72, 78, 109, 148, 149, 166, 191,
194, and 198) specifically support this size. Commenters include
DISCUS, Milestone Brands, Takara Shuzo International, the American
Distilled Spirits Alliance, and the Chinese Ministry of Commerce. Most
commenters note that authorizing this size would fill the large gap
between two currently-authorized sizes (375 and 700 milliliters) and
would ``provide container size parity with the wine and malt based RTD
products available to consumers'' (Comment 72).
v. 350 Milliliters
Five commenters (Comments 59, 148, 166, 191, and 198) specifically
support this size. Commenters include DISCUS, Takara Shuzo
International, FEVS, and the American Distilled Spirits Alliance.
Allowing greater flexibility for producers and more choices for
consumers were the most commonly cited reasons for supporting this
size.
vi. 250 and 187 Milliliters
Four commenters specifically support these sizes (Comments 138,
163, 171, and 180). Commenters include Ball Corporation, Social Hour
Cocktails, the Glass Packaging Institute, and Charbay Distillery. Ball
Corporation (Comment 180) notes that these sizes would particularly
benefit producers and consumers of RTD cocktails.
b. Distilled Spirits in Cans
i. 945 and 710 Milliliters
Ball Corporation (Comment 180) specifically supported these two
sizes as a way to promote RTD cocktails.
ii. 700 Milliliters
Suave Spirits International (Comment 23) specifically supported
this size, noting that it is a common size in European markets and
would help establish uniformity in packaging sizes and reduce the
number of SKUs needed to manage their products.
iii. 475 and 570 Milliliters
WISEACRE Brewing (Comment 25) and Ball Corporation (Comment 180)
specifically supported these two sizes, which would fill the gap
between the two currently authorized sizes (12 and 24 ounces) and allow
more manufacturing options for small producers and greater choice for
consumers.
iv. 331 Milliliters
DISCUS (Comments 59 and 197) and Ball Corporation (Comment 180)
specifically commented on this size, noting that authorization of this
size would help achieve greater operational efficiency.
c. Distilled Spirits in Containers Other Than Cans--355 Milliliters
Several commenters specifically supported this size. Commenters
include Representative Glenn ``GT'' Thompson, Representative Austin
Scott, the Glass Packaging Institute, O-I Glass, and Ball Corporation.
The commenters generally state that allowing this size would provide
greater consumer choice as the shift to smaller packaging formats
continues to grow for both alcohol and non-alcohol beverages.
d. Other Distilled Spirits Size
TTB received a number of comments to Notice No 210A requesting
additional sizes for distilled spirits containers that were not
proposed in Notice Nos. 210 and 210A, because commenters did not have a
chance to comment on these specific sizes we are not taking action on
those at this time.
D. Harmonization of Authorized Standards for Fill Across Distilled
Spirit Container Types
During the comment period for Notice No. 210, TTB received several
comments pertaining to the different standards of fill for spirits in
cans and containers other than cans (for example, comments 45, 52, 53,
59, 63, 71, and 75). The comments generally stated that removing
distinctions between cans and other containers for distilled spirits
would result in greater competition, consumer choice, and a consistency
of regulation, without adding to consumer confusion. As a result, in
Notice No. 210A, TTB requested comments on whether it should maintain
this distinction.
TTB received several comments to Notice No. 210A that address the
question of harmonization of sizes for distilled spirits. Most of the
commenters state that the current standards of fill unfairly promote
can manufacturers. Applying the same standards of fill for
[[Page 1874]]
all distilled spirits containers would allow producers of glass
containers to compete more fairly with metal container producers. Both
the Glass Packaging Institute and O-I Glass (Comments 163 and 196,
respectively) note that the RTD cocktail market is rapidly expanding,
and malt- or wine-based RTD cocktail manufacturers have a choice
between cans or bottles when producing 355 milliliter (12 ounce)
products, which is a popular size for consumers. Spirits-based RTD
cocktail manufacturers, however, do not have a choice and must only use
cans if they choose to produce products in this size. O-I goes on to
say that glass is ``endlessly recyclable without any loss of material
or quality,'' making it an environmentally-friendly choice for both
spirits producers and consumers.
The only comments in opposition were those opposed to any revision
to the standards of fill generally, for example, the Mexican Chamber of
the Tequila Industry (Comment 165).
E. Other Comments
TTB received a number of comments that did not address retaining or
eliminating the standards of fill, the specific proposed standards of
fill sizes, or the harmonization of authorized standards of fill across
distilled spirits container types. We note that we will not be
addressing those comments in this rulemaking as they are outside of its
scope.
IV. TTB Analysis
As discussed previously, TTB received comments that express support
for eliminating the standards of fill, asserting that eliminating the
standards will provide them with greater flexibility to meet consumer
demands and grow their businesses. TTB received comments that oppose
eliminating the standards of fill. These commenters contend that
eliminating the standards of fill would cause consumer confusion and
potentially lead to a proliferation of differing State container size
requirements that could cause further consumer confusion. Commenters
also express concern about significant market disruption.
Based upon these comments, particularly those with regard to the
potential consumer confusion, TTB believes that the appropriate action
at this time is not to eliminate all standards of fill but instead to
authorize all of the new standards of fill that were specifically
requested and for which TTB received interest in and support for
authorizing.
TTB notes that, while some commenters express support for
eliminating of the standards of fill, a number of the comments
themselves focus specifically upon ensuring that certain sizes, such as
473 milliliter (16 oz.) and 568 milliliter (19.2 oz) for wine and 500
milliliter for distilled spirits, were authorized. TTB believes that
its authorization of these sizes largely addresses these commenters'
concerns.
In light of this, TTB believes that the addition of the proposed
sizes will result in many of the same benefits that were intended by
proposing eliminating the standards of fill--providing bottlers with
more flexibility, facilitating the movement of goods in domestic and
international commerce, and providing additional purchasing options to
consumers, but without causing the disruption commenters expressed
concerns over regarding the proposed elimination of standards of fill.
TTB does recognize that the result is several authorized standards that
would be close to each other, including, for wine, 187 ml (an existing
standard of fill) and 180 ml (one proposed in Notice Nos. 210 and 210A)
and, for distilled spirits, 350 ml (proposed in Notice No. 210A) and
355 ml (which is already authorized for distilled spirits in cans, but
would be authorized for all distilled spirits containers with the
elimination of distinction in standards for different type of distilled
spirits containers). While TTB understands the potential for consumers
in the near term to mistake the size of new containers that are close
in size to other authorized containers, TTB believes the additional
flexibility for industry members and broader consumer choice that
authorizing the new sizes provides offsets the potential that
expectations may take time to adjust. TTB also believes that the
limited nature of these approvals, as opposed to eliminating all
standards, similarly limits the potential for consumer confusion.
As explained in Notice No. 210A, 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. Accordingly, TTB solicited and received several
comments on whether it should maintain a distinction between cans and
containers other than cans consistent with this purpose.
After reviewing the comments, TTB has determined that there is no
basis for maintaining the distinction between cans and other containers
for distilled spirits for purposes of consumer protection. As some
commenters note, consumers are already familiar with comparing net
contents labels on other foods and beverages to determine if one
package contains more product than another, regardless of the shape or
material of the packaging. TTB currently requires net content
statements on alcohol beverages, which allows consumers to do the same
with distilled spirits products regardless of container type.
With regard to the comment that TTB lacks the authority to issue
regulations relating to standards of fill, the commenter points to
statements in the Treasury Competition Report that the standards are
``no longer necessary to ensure accurate calculation of tax liabilities
or to protect the revenue'' and that ``consumers presumably have ample
information on bottle size from labeling and point of sale displays.''
We disagree with the proposition TTB lacks authority.
As noted above, 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 Treasury Competition Report goes on to describe TTB plans for
``future rulemaking to propose additional new standards of fill,'' and
states that such rulemaking ``should again consider eliminating the
standards of fill requirements and specifically examine whether the
potential impact on competition outweighs potential consumer
confusion.'' That ``future rulemaking'' was Notice No. 210, which
requested
[[Page 1875]]
comment on eliminating the standards of fill. The comments to Notice
Nos. 210 and 210A included information addressing the presumption that
consumers have adequate information and that such information prevents
consumer deception with respect to the products and quantities. As
described above in the comment summaries, a number of commenters
described confusion that was likely from a complete elimination of the
standards of fill. In conclusion, rather than indicate TTB does not
have authority for maintaining standards of fill, the statements in the
Treasury Competition Report were the bases for soliciting comment from
the public through Notice Nos. 210 and 210A, and those comments form
the basis for the actions taken in this final rule.
V. TTB Determination
After careful analysis of the comments discussed above, TTB has
decided not to eliminate the standards of fill for wine and distilled
spirits. Rather, TTB is adding all sizes for which TTB sought specific
comments on in Notice Nos. 210 and 210A. Based upon the comments
received to those notices, TTB is authorizing the addition of the 180,
300, 330, 360, 473 (16 oz.), 550, 569 (19.2 oz), 600, 620, 700, and 720
milliliters sizes and 1.8 and 2.25 liter sizes for wine to Sec. 4.72,
and the 187, 250, 331, 350,355, 475, 500, 570, 700, 710, and 945
milliliters sizes and 1.5, 2, 3, 3.75 liter sizes for distilled spirits
containers to Sec. 5.203.
TTB is also adopting the proposal in Notice No. 210A to eliminate
the distinction between standards of fill for cans and containers other
than cans for distilled spirits in Sec. 5.203. As a result, all
standards of fill for distilled spirits are approved for cans and
containers other than cans.
Regulatory Analysis and Notices
Regulatory Flexibility Act
TTB certifies that this final rule will not have a significant
economic impact on a substantial number of small entities. This final
rule will provide wine and distilled spirits bottlers and importers
with additional flexibility to use new bottle sizes if they so choose.
This proposed regulation does not impose any new reporting,
recordkeeping, or other administrative requirements. Accordingly, a
regulatory flexibility analysis is not required.
Paperwork Reduction Act
The collection of information in this 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
regulation will 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
It has been determined that this final rule is not a significant
regulatory action as defined in Executive Order 12866, as amended.
Therefore, a regulatory assessment is not necessary.
Inapplicability of the Delayed Effective Date Requirement
Because these regulations relieve a restriction by providing wine
and distilled spirits bottlers and importers with additional
flexibility to use new bottle sizes if they so choose, and do not
impose any new reporting, recordkeeping, or other administrative
requirements, it has been determined, pursuant to 5 U.S.C. 553(d)(1),
that these regulations will be issued without a delayed effective date.
List of Subjects
27 CFR Part 4
Advertising, Alcohol and alcoholic beverages, Consumer protection,
Customs duties and inspection, Export, Imports, Labeling, Packaging and
containers, Reporting and recordkeeping requirements, Wine.
27 CFR Part 5
Advertising, Alcohol and alcoholic beverages, Consumer protection,
Customs duties and inspection, Exports, Imports, Labeling, Liquors,
Packaging and containers, Reporting and recordkeeping requirements.
27 CFR Part 24
Administrative practice and procedure, Claims, Electronic funds
transfers, Excise taxes, Exports, Food additives, Fruit juices,
Labeling, Liquors, Packaging and containers, Reporting and
recordkeeping requirements, Research, Scientific equipment, Spices and
flavorings, Surety bonds, Vinegar, Warehouses, Wine.
Amendment to the Regulations
For the reasons discussed in the preamble, TTB amends 27 CFR parts
4, 5, and 24 as follows:
PART 4--LABELING AND ADVERTISING OF WINE
0
1. The authority citation for part 4 continues to read as follows:
Authority: 27 U.S.C. 205, unless otherwise noted.
0
2. In Sec. 4.37, revise paragraph (b)(1) to read as follows:
Sec. 4.37 Net contents.
* * * * *
(b) * * *
(1) For the metric standards of fill shown in table 1 to paragraph
(b)(1), the equivalent U.S. measures are:
Table 1 to Paragraph (b)(1)
------------------------------------------------------------------------
Metric measure Equivalent U.S. measure
------------------------------------------------------------------------
3 liters (L)......................... 101 fluid ounces (fl. oz.).
2.25 L............................... 76.1 fl. oz.
1.8 L................................ 60.9 fl. oz.
1.5 L................................ 50.7 fl. oz.
1 L.................................. 33.8 fl. oz.
750 milliliters (mL)................. 25.4 fl. oz.
720 mL............................... 24.3 fl. oz.
700 mL............................... 23.7 fl. oz.
620 mL............................... 21.0 fl. oz.
600 mL............................... 20.3 fl. oz.
568 mL............................... 19.2 fl. oz.
550 mL............................... 18.6 fl. oz.
500 mL............................... 16.9 fl. oz.
473 mL............................... 16 fl. oz.
375 mL............................... 12.7 fl. oz.
360 mL............................... 12.2 fl. oz.
355 mL............................... 12.0 fl. oz.
330 mL............................... 11.2 fl. oz.
300 mL............................... 10.1 fl. oz.
250 mL............................... 8.5 fl. oz.
200 mL............................... 6.8 fl. oz.
187 mL............................... 6.3 fl. oz.
180 mL............................... 6.1 fl. oz.
100 mL............................... 3.4 fl. oz.
50 mL................................ 1.7 fl. oz.
------------------------------------------------------------------------
* * * * *
0
3. In Sec. 4.72, revise paragraph (a) to read as follows:
Sec. 4.72 Metric standards of fill.
(a) Authorized standards of fill. The standards of fill for wine
are the following:
(1) 3 liters.
(2) 2.25 liters.
(3) 1.8 liters.
(4) 1.5 liters.
(5) 1 liter.
(6) 750 milliliters.
(7) 720 milliliters.
(8) 700 milliliters.
(9) 620 milliliters.
(10) 600 milliliters.
(11) 568 milliliters.
(12) 550 milliliters.
(13) 500 milliliters.
(14) 473 milliliters.
[[Page 1876]]
(15) 375 milliliters.
(16) 360 milliliters.
(17) 355 milliliters.
(18) 330 milliliters.
(19) 300 milliliters.
(20) 250 milliliters.
(21) 200 milliliters.
(22) 187 milliliters.
(23) 180 milliliters.
(24) 100 milliliters.
(25) 50 milliliters.
* * * * *
PART 5--LABELING AND ADVERTISING OF DISTILLED SPIRITS
0
4. The authority citation for part 5 continues to read as follows:
Authority: 26 U.S.C. 5301, 7805, 27 U.S.C. 205 and 207.
0
5. Revise Sec. 5.203 to read as follows:
Sec. 5.203 Standards of fill (container sizes).
(a) Authorized standards of fill. The following metric standards of
fill are authorized for distilled spirits, whether domestically bottled
or imported:
(1) 3.75 Liters.
(2) 3 Liters.
(3) 2 Liters.
(4) 1.8 Liters.
(5) 1.75 Liters.
(6) 1.5 Liters.
(7) 1.00 Liter.
(8) 945 mL.
(9) 900 mL.
(10) 750 mL.
(11) 720 mL.
(12) 710 mL.
(13) 700 mL.
(14) 570 mL.
(15) 500 mL.
(16) 475 mL.
(17) 375 mL.
(18) 355 mL.
(19) 350 mL.
(20) 331 mL.
(21) 250 mL.
(22) 200 mL.
(23) 187 mL.
(24) 100 mL.
(25) 50 mL.
(b) Spirits bottled using outdated standards. Paragraph (a) of this
section does not apply to:
(1) Imported distilled spirits in the original containers in which
entered into customs custody prior to January 1, 1980; or
(2) Imported distilled spirits bottled or packed prior to January
1, 1980, and certified as to such in a statement signed by an official
duly authorized by the appropriate foreign government.
PART 24--WINE
0
6. The authority citation for part 24 continues to read as follows:
Authority: 5 U.S.C. 552(a); 26 U.S.C. 5001, 5008, 5041, 5042,
5044, 5061, 5062, 5121, 5122-5124, 5173, 5206, 5214, 5215, 5351,
5353, 5354, 5356, 5357, 5361, 5362, 5364-5373, 5381-5388, 5391,
5392, 5511, 5551, 5552, 5661, 5662, 5684, 6065, 6091, 6109, 6301,
6302, 6311, 6651, 6676, 7302, 7342, 7502, 7503, 7606, 7805, 7851; 31
U.S.C. 9301, 9303, 9304, 9306.
0
7. In Sec. 24.255:
0
a. Revise paragraph (b); and
0
b. Remove the parenthetical authority citation at the end of the
section.
The revision reads as follows:
Sec. 24.255 Bottling or packing wine.
* * * * *
(b) Bottle or other container fill. (1) Proprietors of bonded wine
premises and taxpaid wine bottling house premises must fill bottles or
other containers as nearly as possible to conform to the amount shown
on the label or blown in the bottle or marked on any container other
than a bottle. However, in no event may the amount of wine contained in
any individual bottle, due to lack of bottle uniformity, vary from the
amount stated more than plus or minus:
(i) 1.0 percent for 15.0 liters and above;
(ii) 1.5 percent for 14.9 liters to 1.0 liter;
(iii) 2.0 percent for 750 mL to 550 mL;
(iv) 2.5 percent for 500 mL to 473 mL;
(v) 3.0 percent for 375 mL to 300 mL;
(vi) 4 percent for 250 mL and 200 mL;
(vii) 4.5 percent for 187 mL to 100 mL; and
(viii) 9.0 percent for 50 mL.
(2) In such case, there will be substantially as many bottles
overfilled as there are bottles underfilled for each lot of wine
bottled. Short-filled bottles or other containers of wine which are
sold or otherwise disposed of by the proprietor to employees for
personal consumption need not be labeled, but, if labeled, need not
show an accurate statement of net contents.
* * * * *
Signed: January 3, 2025.
Mary G. Ryan,
Administrator.
Approved: January 3, 2025.
Aviva R. Aron-Dine,
Deputy Assistant Secretary for Tax Policy.
[FR Doc. 2025-00271 Filed 1-8-25; 8:45 am]
BILLING CODE 4810-31-P
</pre></body>
</html>Indexed from Federal Register on January 10, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.