Citing an influx of advertising touting the health benefits of certain alcoholic beverages, the U.S. Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB) published a memo warning producers to stop making such claims.
“We have found an increasing number of alcohol beverage advertisements, including company websites and social media accounts, depicting health-related statements that suggest a relationship between the consumption of an alcohol beverage and its purported health benefits or effects,” the TTB wrote in its weekly newsletter on August 14.
“We remind industry members that the TTB advertising regulations prohibit any health-related statement that is untrue in any particular or tends to create a misleading impression as to the effects of consumption on health,” it continued.
The TTB linked to its regulations for malt beverages, which prohibit producers from making the following kinds of statements in their advertising:
- “Any statement that is false or untrue in any material particular, or that, irrespective of falsity, directly or by ambiguity, omission of inference, or by the addition of irrelevant, scientific or technical matter, tends to create a misleading impression;”
- “Any statement that is disparaging of a competitor’s products;”
- “Any statement, design, device or representation of or relating to analyses, standards or tests, irrespective of falsity, which the appropriate TTB officer finds to be likely to mislead the consumer.”
When it comes to “health-related statements,” the TTB prohibits producers from making “any statement related to health,” which “includes statements of a curative or therapeutic nature that, expressly or by implication, suggest a relationship between the consumption of alcohol, malt beverages, or any substance found within the malt beverages, and health benefits of effects on health.”
Producers are also banned from making any kind of “health-related directional statement,” which would direct consumers to another information source with information connecting their products, similar products or alcohol consumption and health benefits.
However, specific health claims, so long as they are “truthful and adequately substantiated by scientific or medical evidence,” are fair game. A claim like this must be “sufficiently detailed and qualified with respect to the categories of individuals to whom the claim applies” and must disclose “the health risks associated with both moderate and heavier levels of alcohol consumption” and outline “the categories of individuals for whom any levels of alcohol consumption may cause health risks.”
Any alcoholic beverage stronger than 0.5% ABV must bear the standard government warning on its label verbatim, with all punctuation intact. In its August 14 notice, the TTB said that typos and errors within the warning are “one of the most common reasons COLA [certification of label approval] applications are returned for correction.”
Under the Federal Alcohol Administration Act, the TTB oversees the regulation of certain alcohol beverages — wine stronger than 7% ABV, distilled spirits and malt beverages, including beer — to “ensure an open, fair marketplace for the alcohol industry and the American consumer.” Cider, which is considered a wine that’s less than 7% ABV, and hard seltzers that don’t use malted barley as their base sugar fall under the purview of the Food and Drug Administration, which is why ciders and hard seltzers have standard nutritional labels, but beers do not.
“Everything related to our FAA Act labeling jurisdiction really has as its root the idea that we’re trying to prevent people from misleading the consumer,” TTB congressional liaison Tom Hogue told Brewbound. “That’s really what it comes down to in most cases is looking at a label in its totality to determine whether or not the net effect is to be misleading to the consumer.”
When it comes to touting products’ nutritional facts on labels or in advertising, brewers who declare their products to be “low carb” or “low calorie” must also include the number of calories and grams of carbohydrates, protein and fat contained in a single serving, according to a TTB ruling issued in 2004 and updated in 2013. The TTB considers labels or ads without this information to be “misleading.” However, advertisements whose only reference to calories is a beer with “light” or “lite” in the name do not need detailed nutritional information.
“We have historically held this position that if you’re going to have any kind of count — caloric or carbohydrates statement or representation in your labeling or advertising of your product — we’re going to view it as misleading unless it provides complete background information about the calorie, carbohydrate, protein and fat content of the product,” Hogue said. “So that’s where we started from in 2004. We said if you’re going to present information, let’s please present a complete picture.”
By insisting brewers offer the same information, the TTB prevents nutritional facts from being manipulated, and makes comparison shopping easier for consumers.
“Both of these rulings are coming at this from the angle that we’re trying to prevent the misleading of the consumers, and part of that is saying not only do we need you to give a complete picture so you don’t just talk about your caloric or your carbohydrates, you’ve got to talk about the whole kit and caboodle, and we want you to present it in the same manner as everybody else,” Hogue said. “That way when consumers look at it, they can compare apples to apples, oranges to oranges.”
The August 14 notification could be a sign the TTB intends to ramp up enforcement, McDermott, Will & Emery counsel Nichole Shustack told Brewbound.
“We’ve certainly seen the TTB taking a closer look at this,” she said. “The TTB’s statement about health claims as a reminder to the industry is probably a precursor to some future enforcement actions.”
Making factual statements about a product, such as calling out its calorie count, is permissible, but producers should think twice about comparing their product to competitors.
“Saying your product is, for example, healthier than another product or even alluding to that in the advertising because that product is 150 calories, that’s where you start walking the line,” Shustack said.
In addition to the TTB overseeing health claims in labeling and advertising on a federal level, some state governments have their own regulations and require producers to submit labels for approval prior to launch. Often a ramp up of enforcement at the federal level can trickle down to the states.
“We’ve actually seen some states take a harder stance than they traditionally had as well, so I would not be surprised if we didn’t see an increase from the TTB on these issues as well as the states following suit,” Shustack said.
The balance between state and federal regulation is sometimes delicate. The TTB requires products being sold across state lines to obtain a COLA; however, some states require COLA from the TTB in all cases, no matter where the beer is sold. Some don’t.
“The states have an incredible amount of authority under the 21st amendment to regulate alcohol within their borders,” Hogue said.
To ensure that all labels and advertising are in compliance, both Shustack and Hogue recommended that brewers take advantage of the TTB’s complimentary review services.
“The TTB is genuinely very helpful when it comes to this stuff, and they want to help you manage this, because it is a difficult thing to determine, especially when you’re seeing products in the market that seem to be making health claims,” Shustack said.
Producers can send proposed advertising material to market.compliance@ttb.gov for review. Questionable advertisements can be reported to the same address, but the TTB cautioned that “we generally do not comment on the outcome or provide the findings of advertising reviews except to the responsible advertiser.”
If there’s one thing to keep in mind when writing copy for commercials, advertising and social media posts, it’s that “you can’t say something in an advertisement that you can’t say on the label,” Hogue said.
“That’s not a bad way to give yourself a gut check,” he said.
If all the regulations in place seem strict, it’s because they exist for one reason: fairness in the marketplace.
“This is important to a level playing field,” he said. “If you’re getting sales because you’re misleading people, that doesn’t help anybody who is trying to do this right, is obeying the law and is competing on what they hope to be a level playing field.”