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|
For Immediate Release |
| Oct. 8, 2003 | |
| Contact: Carol McKay | |
| 202-835-3323 ext.114 | |
| media@nclnet.org |
NCL Letter to TTB: Proposed Rule on 'Flavored Malt Beverages' Needs Fixing
August 15, 2003
Chief
Regulations and Procedures Division
Alcohol and Tobacco Tax and Trade Bureau
P.O. Box 50221
Washington,
D.C. 20091-0221
Attn: Notice No. 4 Comment of National Consumers League
On The Proposed Rule on Flavored Malt Beverages (FMBs) and Related Proposals
68
Fed. Reg. 14292 (March 24, 2003)
The National Consumers League (NCL)
is pleased to submit comments to the Alcohol and Tobacco Tax and Trade Bureau (TTB)
on the Proposed Rule, Flavored Malt Beverages (FMBs) and Related Proposals, 68
Fed. Reg. 14292 (March 24, 2003). While NCL is pleased to see TTB mandate
alcohol content labeling for FMBs, we are very concerned with other aspects of
the proposed rule. Specifically,
NCL opposes the perpetuation of policies that differentiate malt-based alcoholic
beverages from distilled alcoholic beverages.
In NCL’s view, ethyl alcohol is the same, regardless of whether it is
in beer, wine, or distilled spirits. Basing
public policy upon whether a drink is fermented or distilled misleads
consumers.
NCL is the oldest consumer
advocacy organization in the United States.
Since 1899 NCL has worked to protect and promote the economic and social
interests of America’s consumers, using education, research, science,
investigation, publications, and the public and private sector to accomplish
that mission. We are concerned that goods be produced and distributed and
services rendered not only at reasonable prices and in adequate quantity, but
under fair, safe, and healthy working conditions that foster quality products
for consumers and a decent standard of living for workers.
Our priority is always be to promote the welfare of those consumers, wage
earners, and income recipients least able to protect themselves, and to assist
them in developing their own capabilities to the extent possible.
NCL has been involved in consumer
education and advocacy regarding alcohol issues for many years. NCL along with
other public interest groups is petitioning TTB for mandatory “Alcohol
Facts” labeling that includes, among other things, the beverage’s total
alcohol content expressed as a percentage of volume, serving size, and the
amount of alcohol and number of calories per serving.
NCL has published information on
alcohol equivalency. Copies are
attached. We have worked hard to
dispel the myth that the source of the alcohol and the type of alcohol are
material.
Summary Of The
Proposed Rule
TTB’s proposed rule would affect
the composition, labeling, and advertising of FMBs, 68 Fed. Reg. at 14292.
As NCL understands this type of product, FMBs are derived from a malt
beer base. The brewer removes certain
characteristics of malt, such as the traditional flavor and color, then adds
flavors that are frequently delivered in an ethyl alcohol vehicle, as well as
water, sweeteners, and other ingredients.
NCL understands that FMBs are currently regulated most
similarly to beer. The alcohol
content of an FMB is similar to that of most beers – 4 to 6% by volume. They are taxed at the same level as beer.
The distribution is similar to that of beers.
The restrictions that currently exist upon the sale and promotion of beer
are also applicable to FMBs. The
more stringent requirements and higher taxes applicable to distilled spirits do
not apply to FMBs.
The proposed rule would require that no more than 0.5% of the alcohol content of
an FMB could be derived from distilled spirits, with the remainder from
fermented malt beverages. Alternatively,
TTB would require that at least 51% of the alcohol content of an FMB be derived
from malt. 68 Fed. Reg. at
14295-96.
The proposed rule would require that the “brand” (i.e.,
front) label of any malt beverage that contains any alcohol derived from
added ingredients state the alcohol content of the beverage.
68 Fed. Reg. at 14296-97, 14301; proposed 27 C.F.R. § 7.22.
TTB does not currently require that other malt beverages, such as beer,
bear a statement of alcohol content. TTB
would also prohibit FMB advertising and labeling from referencing distilled
spirits.
Alcohol
Is Alcohol
It is the view of NCL, and that of many other respected authorities, that
alcohol is alcohol, regardless of source. As
NCL has stated in its consumer publications, it
does not matter whether the beverage is beer, wine, a wine cooler, a cocktail,
or a mixed drink. What matters is only one thing: alcohol content in the drink.
The current Dietary Guidelines for Americans, published by the U.S.
Departments of Health and Human Services and Agriculture, define a drink of
alcohol as 12 oz. of regular beer, 5 oz. of wine, or 1.5 oz. of 80-proof
distilled spirits. Standard serving sizes of all alcohol beverages – beer,
wine, and liquor – all contain the same amount of alcohol and have a similar
impact upon the average consumer.
Most consumers do not understand these fundamental facts of alcohol
equivalency. A survey by
Yankelovich Partners showed that only 39 percent of Americans know single
servings of alcoholic beverages all contain the same amount of alcohol.
Fifty-three percent believe a typical mixed drink, like a Bloody Mary or a rum
and Coke, is more “potent” than a 5-oz. glass of wine, even though the
alcohol content is the same. In the
same survey, 62 percent of Americans polled said that understanding the alcohol
equivalency of standard serving sizes of different types of drinks is helpful to
them in making decisions about responsible drinking.
Respected
experts agree that alcoholic beverages are functionally equivalent on a
serving-to-serving basis. For
example, the Journal of the American Medical Association has stated, “…it is
also important to dispel the myth that there are differences between ‘hard’
liquor and beer or wine. …" Benefits
and dangers of alcohol, J.
Am. Medical Assn., Jan. 6, 1999;281:104.
Further, the National Highway Traffic
Safety Administration explains that “Alcohol is alcohol. Beer has the same
effect as straight scotch. One 12-oz. beer has as much alcohol as a 1.5-oz. shot
of whiskey or a 5-oz. glass of wine.” (NHTSA
Fact Sheet, “Myths and Facts about Alcohol and Drinking.)
It is no wonder that consumers continue to be confused by
alcohol equivalency when the policies of TTB perpetuate these myths.
NCL opposes the TTB proposed rule because it perpetuates policies
that assume that different types of alcoholic beverages (beer, wine,
distilled spirit) merit different regulatory treatment.
NCL takes issue with such distinctions; indeed, in the case of FMBs, TTB
is distinguishing even among different types of malt beverages.
The National Institute on Alcohol
Abuse and Alcoholism (NIAAA) states, correctly, in the view of NCL, that the
United States government’s alcohol policies work at “cross purposes:”
[C]hemically, alcohol is alcohol; the alcohol in spirits is no different than the alcohol in beer or wine. Federal public health officials have been engaged in educating the public about the equivalency of the alcohol in alcoholic beverages. At the same time, these beverages are taxed by the federal government at different rates – the federal excise tax rates per ounce of ethanol in beer and wine are lower than they are for spirits. The implicit message in this policy is that spirits cause more problems than beer or wine. As physicians know, the physical consequences from alcohol use develop just as readily from wine and beer as from spirits….
NIAAA Director
Gordis, J. Am. Medical Assn., Dec. 3,
1997
Unfortunately, the FMB proposed rule perpetuates these ill-founded
policies. The labeling provisions
would require mandatory alcohol content labeling for FMBs, but not for beers.
Alcohol content should be mandatory for all beverage alcohol.
It should not be adopted in a piecemeal fashion.
Prohibiting references to distilled spirits on FMB labeling and in FMB
advertising implies that consuming malt beverages is somehow safer than
distilled spirits when they are, in fact, identical in alcohol content on a
serving-to-serving basis. As the
NIAAA explains above, such distinctions carry an implicit, and totally
erroneous, message that beer is deserving of more lenient treatment than other
types of alcoholic beverages.
NCL
Supports Mandatory Alcohol Content Labeling For All Alcoholic Beverages
TTB proposes requiring alcoholic
content on FMB labels. NCL supports
this requirement, but does not believe TTB goes far enough. For the above stated
reasons, mandatory alcohol content labeling is critical, especially for all
malt beverages. TTB should not
be perpetuating the myth that FMBs, because they might contain some quantum of
distilled ethanol, have a different alcohol profile than beer and that beer is
therefore the preferred beverage. It
is not. They are the same, and
labels should be required to disclose that information.
NCL further favors mandatory
“Alcohol Facts” information, akin to that now required for foods, dietary
supplements, and over-the-counter drugs. NCL
is working with other public interest groups to petition TTB for such mandatory
labeling. Mandatory labeling will
provide consumers with the information they need to make better, more informed
choices about alcoholic beverage consumption.
For these reasons, NCL supports TTB’s proposal of mandatory alcohol
content declarations on brand labels. To
the extent that consumers are confused as to the ingredients and alcohol content
of alcoholic beverages, including FMBs, disclosing alcohol content declarations
on front labels will help dispel this confusion.
An “Alcohol Facts” panel on
all alcoholic beverages would further alleviate any consumer confusion.
The panel NCL supports would include, among other things, the
beverage’s total alcohol content expressed as a percentage of volume and the
amount of alcohol per serving. Such
information would enable consumers to make comparisons among alcoholic
beverages, in much the same way that they can do now with foods, dietary
supplements, and over-the-counter drugs.
The
0.5% Proposal “Misses The Point;” The 50/50% Proposal Might Be Beneficial
For Consumer Understanding And Comprehension
TTB
proposes requiring that no more than 0.5% of the alcohol content of an
FMB could be derived from distilled spirits, with the remainder being derived
from fermented malt beverages. TTB seeks comment on an alternative standard that
would require that at least 51% of the alcohol content of an FMB be derived from
malt.
NCL opposes the 0.5% proposal for the reasons stated above. TTB seems to be encouraging product reformulation of FMBs on the assumption that products with distilled spirit content are less preferable than those with malt beverage content. NCL vigorously disputes this assumption. The source of that alcohol is simply not material, and TTB should cease attempting to formulate public policy on this basis.
Requiring FMB reformulation
with more alcohol content from malt is not, from a health, safety or consumer
protection standpoint, better for the public. Alcoholism and deaths and injuries
associated with drunk driving are as likely to be observed with beer as they are
with “hard” liquor and indeed, some data indicates that beer is more likely
to be abused. For instance, some
data show that those who prefer beer typically drink to higher levels of
intoxication, are more likely to drive after drinking, and tend to believe that
driving while intoxicated to be less serious. (Journal of Studies on Alcohol.
1985 May; 46(3): 232-9, Berger & Snortum)
The data further show that beer is more likely to be targeted to underage
drinkers, more likely to be abused by all drinkers, and more likely to be the
causative factor in accidents. It
is not the innocuous beverage so many seem to believe it to be, and TTB should
not be proffering policies that seem to favor beer and malt beverage
formulations over other alcoholic beverages.
For
these reasons, NCL opposes the 0.5% rule. NCL believes there may be greater merit to the 50/50%
proposal that would require that FMBs derive a majority of their alcohol content
from malt, rather than distilled spirits. The 50/50% proposal may reduce the
potential for consumers to be misled or confused. As these products are labeled as “flavored malt
beverages,” requiring that the product derive a majority of its alcohol
content from malt fermentation will assure that an FMB actually contains malt,
and in a significant concentration. While
NCL does question whether source of alcohol is in any way material to consumer
choice, FMB compliance with the 50/50% rule will assure that consumers are not
deceived as to product content.
TTB proposes that, because consumers are or could be
confused about the nature of FMBs, it will ban distilled spirit references in
advertising and labeling such as “Made by Old Sourmash Whisky Company, City,
State.” Or “Jack Daniel’s Hard Cola – Contains no whiskey.” 68 Fed. Reg. at 14298. NCL believes such a ban may not be in
consumers’ interests. The solution lies in providing consumers with more and
better information, not less. If a
reference to whiskey is confusing to consumers, then further labeling
information, such as, “Does not contain whiskey,” might be more useful than
an outright ban.
Conclusions
To the extent that TTB is
proposing to subject FMBs to different standards than other alcoholic beverages,
NCL opposes the proposed rule. There
is no basis in science or public policy to support such distinctions; alcohol is
alcohol and NCL does not support the piecemeal approach TTB proposes here.
To the extent that TTB is seeking to reduce consumer confusion about the
nature and content of FMBs, NCL believes the solution lies in requiring better
and more complete labeling information, including clarifying disclosures,
alcohol equivalency statements, and responsibility messages.
NCL thanks TTB for this
opportunity to comment.
Very truly yours,
LINDA F. GOLODNER
President
The
National
Consumers League, founded in 1899, is America's pioneer consumer
organization. Our mission is to identify, protect, represent, and advance the
economic and social interests of consumers and workers. NCL is a private,
nonprofit membership organization. For more information, visit www.nclnet.org.
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