FDA Says Alcohol Not Subject To New Labeling Rules, Solicits Comments

The following appears in the FDA Federal Register Notice of Proposed Rulemaking on Menu Labeling (Federal Register: April 6, 2011 (Volume 76, Number 66) Proposed Rules, Page 19191-19236):

While alcohol beverages are “food” under the FD&C Act, FDA recognizes that at least one court has held that TTB has exclusive jurisdiction over the labels of the alcohol beverages it regulates under the FAA Act. Brown-Forman Distillers Corp. v. Mathews, 435 F. Supp. 5 (W.D.Ky. 1976).

Providing nutrition information required in section 4205 for alcohol beverages should result in a similar public health benefit as providing the information for a food for which the labeling is exclusively regulated by FDA. However, it is not clear that Congress intended for the nutrition information disclosures required by section 4205 to apply to alcohol beverages, given that the labels of the majority of alcohol beverages are regulated by TTB. For the purposes of this proposal, FDA tentatively concludes that the new menu labeling requirements do not apply to alcohol beverages. Therefore, proposed Sec. 101.11(b)(1)(ii) provides that the labeling requirements do not apply to alcohol beverages.

We request comment on whether alcohol beverages should be within the scope of the requirements of section 4205 and proposed 21 CFR 101.11.