18 December 2006
Attention: Chief                                                                                 Comment 25
Regulations and Procedures Division
Alcohol, Tobacco Tax and Trade Bureau
ATTN: notice no.62
Email: nprm@ttb.gov

Dear Sir,
Notice no.62 – Major Food Allergen Labelling for Wines, Distilled Spirits and Malt Beverages
New Zealand Winegrowers (NZW) is the organisation that researches, promotes and represents the interests of New Zealand grape growers and wine makers. NZW was established in 2002 as a joint venture between the New Zealand Grape Growers Council Inc. and the Wine Institute of New Zealand Inc. NZW is recognised by the New Zealand Government as the principal wine industry organisation. Every grape grower and winemaker in New Zealand is a member of our organisation. We currently have over 800 grower members and 530 winery members. 
New Zealand Winegrowers would like to make the following submission in respect of the above notice.
1.	What would be the costs associated with mandatory allergen labelling to the industry and, ultimately, to the consumer?
New Zealand has recent experience with the introduction of mandatory allergen labelling, which was passed into law in 2002. The introduction of the new regulation in New Zealand did result in production cost increases. However, production cost increases are not the only costs to wine producers and consumers from mandatory allergen labelling. The experience of the New Zealand wine industry is that there are additional costs (which are very difficult to quantify) resulting from the need to educate and address consumer concerns around the new labelling requirements:
•	Some consumers who are not affected by fish, milk or egg allergies have reacted negatively to the labelling because they are unaware that traditional fining agents are derived from such products. In many cases, such consumers believed that, because the labelling requirement was new, the use of such products in wine production was also a new development. 
•	The lack of scientific evidence of allergenic reactions occurring from the use of such substances as fining agents in wine has made it difficult to explain the rationale behind the introduction of this labelling requirement to consumers, adding further to consumer confusion and concern.
•	While compliance by domestic producers can easily be verified through existing inspection and audit procedures, regulators cannot easily do this with imported product. Nor can regulators use laboratory analysis to detect the presence of such substances in imported wines as there is a lack of reliable and inexpensive assays available for this purpose. This makes the allergen labelling requirements extremely difficult to enforce effectively in respect of imported wines. Moreover, it provides an opportunity for non-complying imported wines to compete unfairly with domestic product 
3. Are there any ways in which the proposed regulations can be modified to reduce the regulatory burdens and associated costs of compliance?
In the event that the allergen labelling requirements are introduced, the costs associated with the need to educate and address the concerns of consumers would be reduced if greater flexibility was permitted around the wording of the allergen statement. 
We submit that the proposed form of the statement (e.g. “Contains: egg”) conveys the impression that the allergenic substance was used as an ingredient rather than as a fining agent, and that such a substance definitely remains present in the wine. Unlike ingredients, which are intended to form a part of the final product, fining agents are simply processing aids that perform a technical function and are then removed from the product. Fining agents used in wine production will only remain present in trace quantities if at all. The fact that milk, egg or fish products are only present at trace levels, and indeed may not remain present at all, is relevant to the consumer’s assessment of the level of risk that they are undertaking in consuming the product. 
We further submit that the present form of the allergen statement does not provide for the consumer to e given any indication that the use of egg, fish and milk products as fining agents in wine is a longstanding, traditional practice and not a change to the essential nature of wine as the product of fermented grapes. 
In New Zealand and Australia, the form of words used for the allergen statement is not proscribed. This allows some producers to use more creative explanations that provide more detailed information to the consumer. It also allows statements to the effect that the product “may” contain allergenic substances, which are more accurate. For example: “Clarified in the traditional way using egg whites. Traces may remain.”
An additional benefit of a flexible approach to allergen labelling is that it gives producers the ability harmonise their allergen statements with those required in other markets. This means that fewer changes would be needed to the label for products sold on both domestic and export markets.
4. Does flexibility in placement of the allergen statement reduce the costs of compliance? Would this flexibility interfere with the consumer’s ability to locate the allergen declaration?
Flexibility in placement of mandatory labelling statements is very important for wine producers. It gives them the freedom to create one eye-catching market label and a second label with more detailed marketing and legal information. Moreover, it allows producers selling in multiple markets to alter only one label in accordance with the requirements of different markets, rather than printing two new labels which can add considerably to the cost of exporting. 
In our view, flexibility in placement of mandatory labelling statements does not interfere with the consumer’s ability to locate such information. New Zealand does not have any placement or type size requirements for its mandatory allergen statements. New Zealand Winegrowers has not been informed of any instances of affected New Zealand consumers having experienced difficulty in locating allergen declarations on wine bottles or packages. 
Mandatory statements on New Zealand food products (including wine) are required to be: “written or set out legibly and prominently such as to afford a distinct contrast to the background, and in the English language.” This is considered to be adequate to ensure that such statements are easy to locate, while also allowing producers flexibility in designing their labels.

5. The proposed rules for fining and processing agents.
We submit that it is appropriate to have different rules for fining or processing aids because:
•	In the case of wine, consumers need to have sufficient information to understand that milk, fish or eggs have not been used as an ingredient, but only as a fining agent. Otherwise, consumers may be given the incorrect impression that egg, milk or fish products have been used as ingredients or additives.
•	Unlike ingredients or additives, fining agents used in wine will only remain present in trace quantities if at all. This fact is relevant to the consumer’s assessment of the level of risk that they are undertaking in consuming the product.
•	It is extremely difficult for wine producers to determine with certainty and at reasonable cost whether or not traces of fining agents remain in the wine. It is quite possible that in many cases there will be no traces of the fining agent remaining. In these circumstances, a statement that reads, for example, “Contains: eggs” would in fact be inaccurate. This could lead consumers to alter their consumption behaviour unnecessarily and undermine the value of the allergen statement itself.
6. Should mandatory allergen labelling statements for alcoholic beverages disclose the specific species of fish, or is it sufficient to merely label the allergen as “fish”.
We agree with the reasoning set out in the notice of proposed rulemaking that it is adequate for alcoholic beverages fined with finfish protein to label the allergen as “fish” rather than naming the particular species.
7. How much time does industry require to comply with mandatory food allergen labelling requirements?
A reasonable transition period before the allergen labelling requirements is necessary for a number of reasons. Wine producers require sufficient time to use up existing label stock, undertake label re-design and phase-in new labels. Wine producers may also wish to alter their wine making practice to incorporate non-allergenic fining agents. 
This issue of wines that are already labelled is an important consideration in implementing an allergen labelling regime. Re-labelling existing labelled stock would be extremely costly, labour intensive, time-consuming and logistically difficult exercise for a winery. However, the problem is compounded by the fact that wine is a product that can have an extremely long shelf life. There will inevitably be very significant stocks of wine held by retail distributors at the date when the proposed rules come into force that will have been labelled prior to that date – in some cases decades or even centuries before. It is principally the responsibility of the producer, rectifier, blender, importer or wholesaler to label the product, and it is unlikely that retail distributors would generally have appropriate systems in place to undertake the massive task of re-labelling.
In New Zealand, the allergen labelling requirements were introduced with a two year transition period during which allergen statements were permitted but not mandatory. Vintage wines that were labelled before the date upon which the allergen labelling requirements came into force were granted a permanent exemption from the requirements.
Concluding comments
We would like to conclude with some submissions that we believe are of relevance to the questions set out above.
There appears to be a paucity of scientific research, and even anecdotal evidence, on the extent to which trace elements of fish, milk or egg products used as fining agents in wine remain present in wine, or have any allergenic effect. We are aware that there is research currently being undertaken by the Australian Wine Research Institute into these questions, and that preliminary results will shortly be available. We submit that the results of this research will be extremely valuable in assessing the best approach to take in respect of allergenic substances used as fining agents in wine.
We note that the proposed form of the rules requires that an allergen statement appear when an allergenic substance has been used in the production of an alcoholic beverage. We submit that it would be preferable to require allergen labelling only when the allergen remains present in an alcoholic beverage. Otherwise, the value of the allergen statement is undermined for consumers, and producers will lose customers for wines which may have no allergenic substances present in any amount whatsoever.
In conclusion, if labelling requirements are to be introduced in respect of fish, milk or egg products used as fining agents in wine, we submit that producers should have the flexibility to select the form of words used for the allergen statement, provided that it clearly shows that allergenic substances were used in the production of the wine. This provides:
•	a base minimum of consumer information;
•	the ability for the producer to provide more detailed consumer information if desired; and
•	the ability for the producer to harmonise the allergen statement across multiple markets if necessary.
Thank you for the opportunity to comment on this rule-making. If you have any further questions, please do not hesitate to contact the writer on +64 9 916 1561 or john@nzwine.com.

Yours faithfully

Dr. John Barker
Manager, Policy and Membership
NEW ZEALAND WINEGROWERS