Petition to Amend Regulation 27 CFR Part 4 Section 4.39(a)(7)
Current Regulation - Regulation 27 CFR Part 4, Section 4.39(a)(7) … containers of wine, or any label on such containers, or any individual covering, carton, or other wrapper of such container, or any written, printed, graphic, or other matter accompanying such container to the consumer shall not contain any statement, design, device, or representation which tends to create the impression that a wine contains distilled spirits.
Proposed Amendment to Regulation 27 CFR Part 4 Section 4.39(a)(7) - Containers of wine as defined in Regulation 27 CFR Part 4 Section 4.21(a)(3) or any label on such container, or other wrapper of such container, or any written, printed, graphic, or other matter accompanying such container to the consumer may include the word “fortified” and/or words “grape (wine) spirits added”.
It is the position of the Sweet and Fortified Wine Association that Regulation 27 CFR Part 4, Section 4.39(a)(7) is inconsistent with TTB’s consumer protection mission and contrary to the doctrine of full disclosure of product content. Further, Section 4.39(a)(7) is an archaic wine label regulation of the 1930s that is irrelevant to the American wine consumers in the 21st century..
The fortified wine segment of the American wine industry is primarily concerned with the antiquated regulations prohibiting the use of terms such as “fortified” and “grape (or wine) spirits added” on wine labels. The United States is far different society than when the “Nobel Experiment” of prohibition was repealed in 1933. The U.S. has developed into one of the premier wine producers in the world and Americans are among the most educated and informed wine consumers. Today, over 500 domestic vintners produce “fortified” (wines with grape wine spirits added) wines.
Use of the term “fortified wine” was included in the standards of identity for wine in the early version of the Federal Alcohol Administration Act that established the first wine labeling and advertising regulations following the repeal of prohibition. The term “fortified wine” was removed by amendment to the Act in 1938. Today, a grape wine having an alcoholic content in excess of 14 percent but not in excess of 24 percent by volume and having characteristics generally attributed to an alcoholic content derived in part from added grape brandy or alcohol is termed a “Dessert wine” under Federal Regulation 27 CFR Part 4, Section 4.21(a)(3). The fortified wine segment of the domestic wine industry finds these regulations to be outmoded and contrary to the stated mission of TTB to, in part “administer the laws and regulations in a manner that protects the consumer…” Several arguments can be made for updating the TTB regulations to permit use of the terms “fortified” and/or “grape (or wine) spirits added”.
First, withholding information which could affect purchasing decisions does not appear consistent with TTB’s consumer protection mission. By not permitting producers to fully disclose the contents of a bottle of wine through use of the terms “fortified” or “grape spirits added” on labels, consumers may be misled by other label language or phraseology. Further, these terms can be explained and/or clarified elsewhere on the bottle such as the back label to provide a more complete description of the wine in the bottle. Since there is an increasing consumer concern for fully disclosing the contents of packaged food and beverages including specific ingredients, it seems appropriate that regulations provide a vehicle for specifying wine components - including the addition of grape wine spirits - on the label.
Second, the prohibition of the use of “port” on domestic wine labels after March 2006 has resulted in significant hardship for the American fortified wine industry. Producers desiring to add a fortified, port-style wine to their product line are forced to create a non-generic, proprietary name and corresponding label. While developing a proprietary fortified wine label was sufficiently challenging, producers are confronted with the prohibition to accurately communicate on the label that the wine was fortified with the addition of grape or wine spirits. As a result, producers of new fortified wine are at a competitive disadvantage by the inability to use the terms “port”, “fortified”, or “grape (wine) spirits added”.
Third, it is suggested by TTB that “fortified” cannot be used as a wine descriptor since the term “fortified” has a meaning for consumers under the Food and Drug Administration regulations dealing with foods with added vitamins, minerals, or protein. The dictionary meaning of “fortify” is: to add material to for strengthening or enriching. Dictionary.com provides two relevant but separate definitions of “fortify”. 1.) to add one or more ingredients to increase its nutritional value. 2.) to add alcohol to. Further, Merriam-Webster defines a “fortified wine” as a wine to which alcohol usually in the form of grape brandy has been added during or after fermentation”. From this evidence, it is clear that the term “fortified” has significant but different meanings as applied to food and nutrition as opposed to “fortified wine.” Therefore, the use of “fortified” by FDA should have no relevance to “fortified” as related to alcoholic beverages.
Fourth, concern about the term “fortified” implying significant alcohol content as a result of fortification or the addition of brandy that could increase the incidence of intoxication has little bearing on reality. It is not unusual for domestic table wines to have alcohol levels over 14 percent as a result of natural fermentation and wine-making practices. Further, Federal Regulation 27 CFR Part 4, Section 4.21(a)(3) prohibits “dessert wines” from exceeding 24 percent alcohol while. Most fortified wines currently produced in the United States have alcohol content of 18 to 19 percent by volume - only a few points above a substantial portion of heavy-bodied American table wines.
Finally, the TTB regulations appear to be confusing and inconsistent with regard to the addition of grape, wine, and distilled spirits. Regulation 27 CFR Part 4, Section 4.21(a)(3) clearly speaks of dessert wines as “a grape wine having … an alcoholic content, derived in part from added grape brandy or alcohol…” and having the taste, aroma and characteristics generally attributed to angelica, madeira, muscatel and port…” However, Section 4.39(a)(7) prohibits any statement, design, device, or representation which tends to create the impression that a wine; (i) Contains distilled spirits…” Section 4.39(7) then goes on with a vague disclaimer saying; “However, if a statement of composition is required to appear as the designation of a product not defined in these regulations, such statement of composition may include a reference to the type of distilled spirits contained therein”.
The vagueness and inconsistency is evident when the issue of “distilled spirits” is undefined and the “designation of a product not defined in these regulations” is considered. Since a “fortified wine” is a widely produced and consumed alcoholic beverage product undefined by the regulations; it appears that fortified wines would be subject to a statement of composition and reference to the type of distilled spirits contained in the wine.
Regulations are necessary tools for the administration of an orderly society founded on law. However, regulators need to be sensitive to the ever-changing dynamics of societal evolution. Such concepts need to be considered by all regulatory bodies including those charged with overseeing the alcoholic beverage industry. “Full disclosure” is a significant hallmark of the 21st century. Producers of American fortified wines should be permitted to use “fortified” and “grape (wine) spirits added” on labels to accurately describe their products to an ever-expanding base of 21st century consumers.
SFWA TTB Petition