ATF Ruling 88-1

ATF has been requested to clarify the requirement, effective October 10, 1988, that the alcohol content statement on labels and in advertisements of distilled spirits products be stated in percent-alcohol-by-volume. Specifically, ATF has received inquiries concerning the application of the requirement with respect to distilled spirits bottled before October 10, 1988, as well as with respect to advertising materials produced or put into service before the effective date. ATF has also been requested to clarify the requirement, also effective October 10, 1988, that optional proof statements appear in direct conjunction with the statement of alcohol content expressed in percent-alcohol-by-volume statement.

On October 10, 1986, ATF published a final rule in the Federal Register, T.D. ATF-237, published at 51 FR 36392, which amended regulations in 27 CFR Part 5 by requiring that the statements of alcohol content, required to be shown on labels and in advertisements of distilled spirits products under section 5(e) and 5(f) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e) and (f), be expressed in percent-alcohol-by-volume statement effective October 10, 1988. However, the final rule did not specify whether the new labeling requirement applies only to spirits bottled on or after October 10, 1988, or to spirits bottled before that date but not introduced into interstate or foreign commerce until after October 10, 1988. Furthermore, the final rule did not explain its application with respect to advertising materials, such as billboards, that were produced or put into service prior to October 10, 1988.

With respect to labeling the alcohol content of distilled spirits in percent-alcohol-by-volume, ATF believes that the effective date should apply to distilled spirits bottled on or after October 10, 1988. In this regard, section 5(e) of the FAA Act, and 27 CFR 5.55 provide that distilled spirits shall not be bottled unless a certificate of label approval has been obtained. Accordingly, distilled spirits which were bottled before October 10, 1988, may subsequently be introduced into interstate or foreign commerce with labels that state the alcohol content in degrees of proof in accordance with the current regulations.

With respect to advertising materials, ATF believes that the new requirement should not apply with respect to billboards, signs, specialty items, displays, and similar materials that were put into service prior to October 10, 1988. Furthermore, ATF would not object to the exhaustion of supplies of those advertising materials that may have been produced prior to October 10, 1988, with alcohol content stated in degrees of proof since current regulations authorize this statement. The mandatory statement of alcohol content in percent-alcohol-by-volume shall appear, however, upon the replacement, restoration, or renovation of these materials on or after October 10, 1988.

T.D. ATF-237 also authorizes the appearance of an optional statement of alcohol content in degrees of proof if the labels or advertisements state the information in the following manner:

The label [or advertisement] may also state the alcohol content in degrees of proof if this information appears in direct conjunction (i.e. with no intervening material) with the statement expressed in percent-alcohol-by-volume. If both forms of alcohol content are shown, the optional statement in degrees of proof shall be placed in parentheses, in brackets, or otherwise distinguished from the mandatory statement in percent-alcohol-by-volume to emphasize the fact that both expressions of alcohol content mean the same thing. 27 CFR 5.37(a)(2) and 5.63(c)(2).

In view of the above, ATF has been asked whether a statement expressed in percent-alcohol-by-volume must also appear in direct conjunction with additional statements of proof that appear on labels and in advertisements at places other than the mandatory statement of alcohol content.

Pursuant to 27 CFR 5.33(f), labels may contain information other than the mandatory label information if the additional information does not conflict with, or in any manner quality, statements required under Part 5 of the regulations. Section 5.65(b)(1) provides that advertisements shall not contain any statement concerning a brand or lot of distilled spirits that is inconsistent with any statement on the labeling thereof. Accordingly, ATF believes that additional proof statements may appear on a label or in an advertisement without being placed in direct conjunction with a statement expressed in percent-alcohol-by-volume if a proof statement also appears in direct conjunction with the mandatory statement of alcohol content which is expressed in percent-alcohol-by-volume.

Held: On or after October 10, 1988, distilled spirits may not be bottled unless the label contains an alcohol content statement expressed in percent-alcohol-by-volume in accordance with 27 CFR 5.37. Distilled spirits which were bottled before October 10, 1988, may subsequently be introduced into interstate or foreign commerce with labels that state the alcohol content in degrees of proof.

Held further: A statement of alcohol content expressed in degrees of proof may continue to be published or disseminated in advertising materials such as billboards, signs, displays, and specialty items which were produced or put into service prior to October 10, 1988. The mandatory statement of alcohol content expressed in percent-alcohol-by-volume shall appear, as required by 27 CFR 5.63, upon replacement, renovation, or restoration of these materials on or after October 10, 1988.

Held further: The requirement in 27 CFR 5.37 and 5.63, that optional proof statements appear on labels and in advertisements of distilled spirits in direct conjunction with a statement expressed in percent-alcohol-by-volume, applies to the mandatory statement of alcohol content. A statement of alcohol content expressed in percent-alcohol-by-volume need not appear in direct conjunction with any additional proof statement appearing on labels or in advertisements, if a proof statement also appears in conjunction with the mandatory statement of alcohol content.

27 CFR 5.33, 5.37, 5.55, 5.63