On March 3, 2014, the Food & Drug Administration (FDA) published a Notice of Proposed Rulemaking (NPRM) that, if and when finalized, would make important changes to the labeling of all foods subject to FDA’s primary labeling jurisdiction.  While most alcohol beverages fall under the primary labeling authority of the Alcohol and Tobacco Tax and Trade Bureau (TTB), wines below 7 percent alcohol by volume (ABV) and beers containing no malted barley or no hops fall within the scope of FDA’s primary labeling authority.

The NPRM seeks to adjust FDA’s labeling and related rules to address certain concerns about the American diet, particularly the so-called obesity epidemic.  As such, it aims to increase and improve the amount of labeling information about critical attributes like calories and the addition of sugars to food.  FDA’s proposed regulations would:

• Put a greater emphasis—with larger and bolder type—on calories.  FDA believes the number of calories is especially important to maintaining a healthy weight.
• Place greater emphasis on the number of servings per package and amount per serving.
• Delete the requirement to list calories from fat; however the quantity (in grams) of total, saturated and trans fat will still be required.  FDA has shifted its focus to the type of fat rather than the total amount of fat.
• Require the amounts of potassium and Vitamin D on the label, but not the amounts Vitamins A and C.
• Update certain serving size requirements. These updates would reflect the reality of what people actually eat, according to recent food consumption data.
• Update Daily Values for various nutrients.  In addition, the Percent Daily Value (%DV) would shift to the left of the Nutrition Facts label.  FDA says it wants to help consumers visually and quickly put nutrient information in context.

Significantly, the NPRM expressly addresses the subject of wines below 7 percent ABV and beer falling within FDA labeling jurisdiction in its proposed rules for added sugar labeling.  As noted above, a proposed regulation would require the mandatory declaration of added sugars as a line item in the familiar Nutrition Facts label required by current regulations.  That declaration would include any brown sugar, corn sweetener, corn syrup, dextrose, fructose, fruit juice concentrates, glucose, high-fructose corn syrup, honey, invert sugar, lactose, maltose, malt sugar, molasses, raw sugar, turbinado, sugar, trehalose and sucrose.  And because (according to FDA) no scientific means permits the measurement of added sugars (as distinguished from sugar intrinsic to the food), the NPRM proposes a new record-keeping requirement to document the addition of sugars to foods subject to the labeling rule.

Fermentation, of course, consumes sugar as yeast converts that sugar into alcohol (and other byproducts like CO2).  The NPRM acknowledges this fact, but indicates that FDA does not possess adequate information to assess the degradation of added sugars during the fermentation of wine and beer.  FDA asks commenters to provide information on this issue.

Notwithstanding FDA’s apparent lack of information on the subject, it proposes a specific regulation for beer and wine (plus [...]

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