90 FR 6 pgs. 1868-1876 - Standards of Fill for Wine and Distilled Spirits
Type: RULEVolume: 90Number: 6Pages: 1868 - 1876
Pages: 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876Docket number: [Docket No. TTB-2022-0004; T.D. TTB-200; Re: Notice Nos. 210 and 210A]
FR document: [FR Doc. 2025-00271 Filed 1-8-25; 8:45 am]
Agency: Treasury Department
Sub Agency: Alcohol and Tobacco Tax and Trade Bureau
Official PDF Version: PDF Version
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DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade Bureau
27 CFR Parts 4, 5, and 24
[Docket No. TTB-2022-0004; T.D. TTB-200; Re: Notice Nos. 210 and 210A]
RIN 1513-AC86
Standards of Fill for Wine and Distilled Spirits
AGENCY:
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
ACTION:
Final rule; Treasury decision.
SUMMARY:
[top] This final rule amends the Alcohol and Tobacco Tax and Trade Bureau (TTB) regulations that govern wine and distilled spirits containers to add 13 standards of fill for wine and 15 for distilled spirits. TTB is also amending its regulations to eliminate the distinction between standards of fill for distilled spirits in cans and those for
DATES:
This final rule is effective January 10, 2025.
FOR FURTHER INFORMATION CONTACT:
Caroline Hermann, Alcohol and Tobacco Tax and Trade Bureau, Regulations and Rulings Division; telephone 202-453-2265.
SUPPLEMENTARY INFORMATION:
I. Background
A. TTB Authority
The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers regulations setting forth standards of fill for containers of beverage distilled spirits and wine products distributed within the United States.
The authority to establish standards of fill is based on two provisions of law: (1) section 5301(a) of the Internal Revenue Code of 1986 (IRC), codified at 26 U.S.C. 5301(a) in the case of distilled spirits, 1 and (2) section 105(e) of the Federal Alcohol Administration Act (FAA Act), codified at 27 U.S.C. 205(e), for both distilled spirits and wine. Section 5301(a) of the IRC authorizes the Secretary of the Treasury to prescribe regulations "to regulate the kind, size, branding, marking, sale, resale, possession, use, and reuse of containers (of a capacity of not more than 5 wine gallons) designed or intended for use for the sale of distilled spirits . . ." when the Secretary determines that such action is necessary to protect the revenue. The FAA Act at 27 U.S.C. 205(e) authorizes the Secretary of the Treasury to prescribe regulations relating to the "packaging, marking, branding, and labeling and size and fill" of alcohol beverage containers "as will prohibit deception of the consumer with respect to such products or the quantity thereof . . . ." The FAA Act at 27 U.S.C. 206 generally prohibits the sale to consumers of distilled spirits "in bulk" which is defined as containers over one wine gallon.
Footnotes:
1 ?Sections 5041(e) and 5368 of the IRC also provide the Secretary the authority to set forth tax tolerances for containers of wine products.
TTB administers the IRC and FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, as codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administrative and enforcement authorities to TTB through Treasury Department Order 120-01.
B. Current Standards of Fill for Distilled Spirits
The term "standard of fill" is used in the TTB regulations and in this document to refer to the authorized amount of liquid in the container, rather than the size or capacity of the container itself. For better readability, however, this document sometimes uses the terms "size" or "container size" and "standard of fill" interchangeably. The standards of fill for distilled spirits are contained in subpart K of part 5 of the TTB regulations (27 CFR part 5).
Within subpart K, paragraph (a)(1) of §?5.203 (27 CFR 5.203(a)(1)) specifies the following metric standards of fill for containers other than those described in paragraph (a)(2) of that section:
• 1.8 Liters.
• 1.75 Liters.
• 1 Liter.
• 900 mL.
• 750 mL.
• 720 mL.
• 700 mL.
• 375 mL.
• 200 mL.
• 100 mL.
• 50 mL.
In the case of distilled spirits in metal containers that have the general shape and design of a can, that have a closure which is an integral part of the container, and that cannot be readily reclosed after opening, paragraph (a)(2) of §?5.203 authorizes the use of the following metric standards of fill:
• 355 mL.
• 200 mL.
• 100 mL.
• 50 mL.
For better readability this document will refer to the containers referenced in 27 CFR 5.203(a)(1) as "containers other than cans" and those referenced in §?5.203(a)(2) as "cans."
In addition to the metric standards specified above, §?5.203 contains provisions regarding tolerances (discrepancies between actual and stated fill), unreasonable shortages in fill, and distilled spirits bottled or imported before January 1, 1980, and marketed or released from customs custody on or after that date (the date on which the U.S. volumetric standards were replaced by the §?5.203 metric standards).
C. Current Standards of Fill for Wine
The standards of fill for wine are contained in subpart H of part 4 of the TTB regulations (27 CFR part 4). Within subpart H, paragraph (a) of §?4.72 (27 CFR 4.72(a)) authorizes the use of the following metric standards of fill for containers, in addition to those described in paragraph (b) which are discussed further below:
• 3 liters;
• 1.5 liters;
• 1 liter;
• 750 milliliters;
• 500 milliliters;
• 375 milliliters;
• 355 milliliters;
• 250 milliliters;
• 200 milliliters;
• 187 milliliters;
• 100 milliliters; and
• 50 milliliters.
Paragraph (b) of §?4.72 states that wine may be bottled or packed in containers of 4 liters or larger if the containers are filled and labeled in quantities of even liters (4 liters, 5 liters, 6 liters, etc.).
II. Notices of Proposed Rulemaking
A. Notice No. 210
On May 25, 2022, TTB published Notice No. 210 in the Federal Register (87 FR 31787) proposing to add 10 authorized standards of fill for wine and, as an alternative, to eliminate all but a minimum standard of fill for wine containers. The 10 standards of fill proposed for wine were: 2.25 and 1.8 liters; and 720, 700, 620, 550, 360, 330, 300, and 180 milliliters. TTB also proposed to eliminate all but a minimum and maximum standard of fill for distilled spirits but did not propose to authorize any specific standards of fill for distilled spirits as an alternative.
[top] The proposed rule followed, and took into consideration, a Department of the Treasury report on competition in the markets for alcohol beverages that recommended rulemaking to "again consider eliminating the standards of fill requirements." See Treasury Report on Competition in the Markets for Beer, Wine, and Spirits (February 9, 2022), available at https://home.treasury.gov/system/files/136/Competition-Report.pdf. That report (referred to in this document as the "Competition Report"), which was produced in response to Executive Order 14036, "Promoting Competition in the American Economy" (published in the Federal Register on July 9, 2021, at 86 FR 36987), noted that "[c]ontainer size requirements can be a barrier to
In response to Notice No. 210, TTB received 76 comments. Commenters included national trade associations, the European Union (EU), congressional representatives, individuals, and alcohol beverage companies. Most of the comments addressed the proposals, providing support for or opposition to them. However, many commenters requested that TTB consider adding certain additional authorized standards of fill for distilled spirits and wine that were not included in Notice No. 210, as either a preferred alternative to generally eliminating the standards of fill or, even if their preference was to eliminate the standards of fill, as an option for consideration in the event that the standards of fill were not eliminated. Several commenters also suggested TTB eliminate the distinction between standards of fill that apply to distilled spirits in cans and those that apply to distilled spirits in containers other than cans, which was also not proposed in Notice No. 210.
B. Notice No. 210A
Because TTB received comments that requested amendments beyond the scope of the original request, and recognizing that these requests should be considered in the context of the proposals in Notice No. 210, TTB issued Notice No. 210A on September 9, 2024 (89 FR 73050), which reopened the comment period on Notice No. 210. In Notice No. 210A, TTB specifically requested comments on whether to authorize the following new standards of fill for distilled spirits: For both cans and containers other than cans, 3.75, 3, 2, and 1.5 liters and 500, 350, 250, and 187 milliliters; for cans, 945, 710, 700, 570, 475, and 331 milliliters; and for containers other than cans, 355 milliliters. TTB also requested comments on whether it should maintain the current distinction between standards of fill authorized for distilled spirits in cans and those authorized for distilled spirits in containers other than cans. TTB noted its particular interest in comments regarding whether the distinction, that is, whether the size in combination with the type of container, serves the purpose of preventing consumer confusion or preventing consumer deception consistent with TTB's mandate under the FAA Act. TTB also specifically requested comments on whether to authorize the following new standards of fill for wine: 600 milliliters, 19.2 oz, and 16 oz. 2
Footnotes:
2 ?Notice 210A erroneously listed the metric equivalent of 19.2 oz for wine as 545.5 milliliters, rather than 568 milliliters, reflecting a submission by the American Cider Association and the conversion factor for imperial ounces instead of U.S. fluid ounces. Comment responses addressed the 19.2 oz size and, where applicable, showed that readers generally understood the proposal to be for U.S. ounces as TTB intended. This final rule uses the appropriate conversion factor to establish the metric equivalent in the regulations.
The comment period for Notice No. 210A closed on October 9, 2024.
III. Comments on Notices No. 210 and 210A
A. General
In response to Notice No. 210A, TTB received 123 comments. In total, on Notices No. 210 and 210A, TTB received a total of 199 comments. Commenters included national and international trade associations, members of Congress, representatives of foreign governments, representatives of the glass container industry, individuals, and alcohol beverage industry members.
In addition to comments on particular proposed sizes and the proposal to generally eliminate the standards of fill, discussed further below, TTB received many comments that expressed general views on the standards of fill, either favoring or disfavoring TTB actions, but without reference to the technical aspects of the regulation.
In favor of amending the regulations, one individual commenter explained that it was "common sense to adjust this outdated and arbitrary regulation." (Comment 11) Others articulated the benefits of expanding the standards of fill generally, i.e., independent of whether that was achieved through elimination or the addition of specific sizes (or groups of sizes). For example, one individual stated that expansion into "larger sizes" would "reduce waste and garbage and recycling burdens and increase productivity and profitability while reducing prices for consumers . . . a win-win-win for the triple bottom line." (Comment 129) Another individual expressed that not allowing "critical single serve sizes puts wine and cider at an unfair disadvantage." (Comment 128) Similarly, several commenters, for example Benny Boy Brewing (Comment 112), urged TTB to incorporate its proposed changes, but without referencing a specific size or approach.
Many commenters also expressed their general opposition to any changes at all, for example Bear Creek Winery (Comment 14) stated that TTB's proposal "does not address any issues" and expressed that they "do not wish to add any additional fill sizes to what is already approved." Other commenters expressed that it seemed too soon to revisit the standards of fill given that TTB had recently amended them in 2020. Some commenters opposed the addition of any new standards on business and environmental grounds, such as the Mexican Chamber of the Tequila Industry (comment 165) who explained their view that, "The introduction of a wide range of bottle sizes would present significant challenges to forecasting demand and managing inventory levels, potentially leading to increased costs and inefficiencies, particularly for smaller tequila producers who may have limited resources to adapt to such changes," and that "[s]tandardized sizes have generated significant environmental benefits by promoting efficiency in production and packaging."
B. Comments on the Proposed Elimination of the Standards of Fill
Of the 199 total comments TTB received in response to Notices No. 210 and 210A, approximately a third of the comments address the proposal to generally eliminate the standards of fill. Approximately a fifth of the comments support eliminating the standards of fill for distilled spirits, wine, or both. Several comments express a preference for eliminating the standards of fill but state that approving certain new sizes would be an acceptable alternative. A total of 30 comments specifically oppose eliminating standards of fill for distilled spirits and/or wine.
[top] Commenters supporting the elimination of the standards of fill generally state that the standards are unnecessary, restrictive to producers, and out-of-date. They note that there are no standards of fill for malt beverages or for other consumer products. One distilled spirits producer, Endless West, notes that it regularly encounters challenges posed by the limitations of the standards of fill, and that these limitations reduce competition, inhibit packaging innovations which in turn constrain the industry member's ability to introduce new sizes to meet customer demands, and constrain industry members' efforts to improve profit margins, supply chain efficiencies, and environmental sustainability. The comment goes on to state that consumers are capable of reading the net contents on a label and making rational purchasing decisions in light of existing labeling regulations. Other
Several commenters that support eliminating the standards of fill say that the reasons for them no longer apply or that TTB lacks authority under current circumstances to mandate them. Tincknell & Tincknell, a wine sales and marketing consultant, states that the standards relate to tax collection and "post-Prohibition era criminal behavior" that are no longer relevant. The National Federation of Independent Businesses asserts that statements made in the February 2022 Competition Report show that TTB cannot justify maintaining its standards of fill regulations under the relevant statutory authority in the IRC and FAA Act.
Several commenters favor eliminating the standards of fill but state that adding one or more of the proposed sizes would be an acceptable option. While noting similar reasons as those described above for supporting the elimination of standards of fill, these commenters stated that in the event the standards of fill are retained, adding specific new sizes would still provide benefits to producers and consumers. A number of these commenters referencing cider products specifically requested approval of 16 ounce and 19.2 ounce sizes for wine, while other commenters referencing "ready-to-drink" cocktails (often referred to as RTDs) specifically requested approval of the 475 ml and 570 ml sizes for distilled spirits in metal cans. These are addressed in the comment summaries related to specified sizes below.
Commenters opposing the elimination of the standards of fill cite a number of reasons to retain the standards. The most often cited reason is that the standards of fill prevent consumer confusion. The Wine Institute (Comment 43) stated that the standards of fill do as intended by preventing consumer confusion and deception that would otherwise exist if there was a limitless array of alcohol beverage container sizes in the marketplace. The Wine Institute stated that it "has had discussions with state Attorneys General who have expressed concerns about the ability of packaging and sizing to deceive consumers." One concern is the difficulty in cost comparison and the potential for "shrinkflation," when the packaging size and amount of product is reduced while the price remains the same, and the comment goes on to raise concerns with the small differences between some of the proposed container sizes compared with the existing standards of fill. Similarly, Fox Run Vineyards states that removing the standards of fill opens up the opportunity for consumer deception, citing how small differences in bottle sizes may result in less product provided for the same price. Milestone Brands, LLC, a producer and marketer of spirits-based products (Comment 72) states that it is "the best option on balance for consumers" and that retaining the standards of fill requirements while allowing for new sizes will maintain sizes that are "recognizable and familiar" to consumers while providing additional consumer choice and ensuring that "order is maintained in the marketplace."
Other commenters claim that the standards of fill requirements have been in place for decades and have not caused a significant burden on industry members. For example, the Distilled Spirits Council of the United States (Comment 59) states: "Having standard sizes codified in the regulations supports investment in modern packaging and bottling equipment, which promotes efficiency, cost savings, and economies of scale as the number of necessary bottle sizes, labels, and machinery parts are reduced." Representatives Mike Thompson and Dan Newhouse, co-chairs of the Congressional Wine Caucus (Comment 51), express concern that eliminating the standards of fill could cause "[s]ignificant disruption to business operations as producers, distributors, and retailers struggle to adapt business operations to accommodate a proliferation of container sizes."
Commenters also argued that eliminating the standards of fill will result in conflicting State requirements. These commenters report that a number of States defer to the Federal standard of fill requirements, so elimination could result in a patchwork of different State rules. As the Washington Wine Institute (Comment 62) states, a proliferation of new rules "will create serious disruption to business as wineries would have to overhaul their sales, marketing, and compliance models to adjust to . . . varying state regulations." A comment from the Colorado Wine Industry Development Board (Comment 69) echoes this view that eliminating standards of fill, or adding any new standards of fill for wine, will cause unnecessary consumer confusion, significant disruption to business operations, difficulty for producers' compliance across State lines, and unnecessary expenditure of State resources to create standards in lieu of the Federal standards. Also addressing the wine industry specifically, the Wine Institute asserts that the Federal framework for standards of fill creates a uniform system that allows wineries to comply with one national system of regulations and that eliminating the Federal standards will result in unnecessary business disruption. The comment goes on to assert that Federal uniformity enhances competition by providing stability and, noting that eight States currently have statutorily required standards of fill that have presented ongoing challenges to the industry, the Wine Institute asserts that it is in the best interest of the wine industry and consumers to have consistency rather than different State rules that allow for differing sizes to be offered in different marketplaces.
While some commenters supporting eliminating the standards of fill assert that doing so will allow greater flexibility for small businesses, others that oppose eliminating the standards of fill assert that maintaining the standards of fill levels the playing field for suppliers of all sizes. In its comment, the Wine Institute states that eliminating the standards of fill "will result in an unknown number of alternative sizes and bottle types that will put small and mid-sized suppliers at a competitive disadvantage because every different container size will require a different bottling run with accompanying costs that cannot be spread over a large number of units.
C. Comments Regarding the Addition of Specific Sizes
1. Wine
[top] Notice Nos. 210 and 210A together solicited comments on adding a combined total of 13 authorized standards of fill for wine. A significant portion of comments address one or more of the proposed new sizes for wine containers. One of the comments, from the Washington Wine Institute (Comment 62), supports limited authorization of new sizes, but only if
Commenters expressed both support and opposition for the addition of specific petitioned-for sizes for wine as follows:
a. 2.25 Liters
As explained in Notice No. 210, TTB received a petition from an importer of boxed wine requesting that the agency authorize a standard of fill of 2.25 liters for wine containers. The importer stated that such a container would significantly reduce the environmental impact of wine packaging because it holds as much as three 750-milliliter wine bottles at half the weight of such bottles.
Three commenters (two individuals and Bobo Wine, LLC-Comments 13, 186, and 185, respectively) specifically support approval of a 2.25-liter size. The commenters generally state that this size would enhance the availability of boxed wines, which they note has environmental benefits, and would be a convenient size for consumers, since it is the equivalent of three standard wine bottles.
b. 1.8 Liters and 720, 550, 360, 300 and 180 Milliliters
In prior rulemaking, including T.D. TTB-165 (December 29, 2020, 85 FR 85514) and Notice Nos. 210 and 210A, TTB described an agreement between the United States and Japan that included a commitment for the United States to engage in rulemaking to propose the addition of specific new standards of fill and to take final action on that rulemaking. These six sizes were among those that the United States agreed to consider in rulemaking under a Side Letter agreement with Japan, dated October 7, 2019, which was part of a larger agreement between the United States and Japan agreed to on that same day.
Three commenters specifically support these six sizes: the National Tax Agency of Japan (Comment 26), the Japan Spirits and Liqueurs Makers (Comment 27), and the Japan Wineries Association (Comment 28). These commenters did not provide additional information beyond expressing support for these sizes. An additional commenter who identified themselves as a U.S. wine importer (Comment 2) also supports the 720 milliliter size to facilitate the importation of certain wines from Italy.
Some commenters expressed concern about one or more of these sizes. For example, the Colorado Wine Industry Development Board (comment 69) expressed concerns about approving sizes that are "nearly but not quite identical to the existing standards" because consumers might purchase a 720-milliliter container thinking it was the existing 750 milliliter size or a 300 milliliter container thinking it was the existing 375 milliliter size.
c. 700 Milliliters
TTB had proposed a 700 milliliter size in Notice No. 210 in response to inquiries from foreign governments in 2007 and a comment on a 2019 notice of rulemaking addressing standards of fill for wine (Notice No. 182, 84 FR 31257). One individual commenter (comment 13) supports this size noting that prohibiting this size "denies American consumers high quality wines and hurts American import and retail businesses . . . ."
Some commenters, such as Fern Valley Vineyards, oppose authorizing 700 milliliter containers for wine due to the potential for consumer confusion. The commenter states that consumers would have trouble distinguishing between the slightly smaller and therefore less expensive 700 milliliter containers, which are commonly used for European wines, and the slightly larger and more expensive 750 milliliter containers, which are commonly used for domestic wines. As a result, Fern Valley Vineyards believes domestic wines would be at a disadvantage as consumers would choose the less expensive bottle without realizing it contains less wine.
d. 620 Milliliters
As explained in greater detail Notice No. 210, TTB proposed a 620 milliliter size in response to inquiries over the years regarding the importation of the French product known as "vin jaune" ("yellow wine" in English). Vin jaune is historically and currently bottled in the 620 milliliters size so authorizing this container size would allow U.S. importers to legally import the wine in its traditionally used containers.
Several commenters specifically support authorizing a 620 milliliter size. Commenters include the French Federation of Wines and Spirits Exporters (FEVS), the European Union, and the Comité Européen des Enterprises Vins. Most of these commenters state that authorizing this size will allow the import of "vin jaune" from France, which is traditionally bottled only in 620 milliliter containers. FEVS (Comments 40 and 191) requests that TTB authorize this size only for vin jaune. No commenters raised concerns specific to this container size.
e. 600 Milliliters
TTB received one comment from a person identifying themselves as a winemaker and former restaurant wine buyer (Comment 4), specifically supporting approval of a 600-ml size noting that this size has "become important for many distributors and wholesale buyers" and authorizing it would allow American consumers to try wines from "regions that are required to use this size package." No commenters raised concerns specific to this container size.
f. 568 Milliliters (19.2 oz.) and 473 Milliliters (16 oz.)
TTB proposed the addition of these container sizes in Notice No. 210A at the request of the American Cider Association (ACA) who noted that both are already commonly used for similar products that are not required to conform to TTB standards of fill.
[top] Numerous commenters support authorization of 473 ml (16 oz) and 568 ml (19.2 oz) sizes. The majority of commenters represent individual cideries and meaderies or cider and mead organizations, including the American Mead Maker Association, the Vermont Cider Association, the New York Cider Association, and the American Cider Association. Several cider producers state that the rationale for authorizing the 16 oz and 19.2 oz sizes along with their metric equivalents is similar to the rationale that was the basis for authorizing 355 milliliter (12 oz) can size in 2020 (T.D. TTB-165, 85 FR 85514), that is, that these sizes are commonly used and available for other products, including cider products to which the standards of fill do not apply and their customers want and expect that size, making it critical to their commercial success. These producers note that, in the production of cider, apples often naturally ferment to an alcohol by volume (abv) level just above 7.4 percent, so producers often take steps to lower the abv below 7 percent so that the standards of fill regulations will not apply, enabling them to use readily available containers, such as the 16 oz can that they could not use for products for which the abv is 7 percent or higher and the standards of fill apply. They state that sugar levels in apples vary widely depending on climate and other factors, making final alcohol levels difficult to predict. They argue that being able to use readily available container sizes that can be used for products not subject to the standards of fill, such as wine products under 7 percent abv and malt beverages will eliminate this uncertainty. Many
g. 330 Milliliters
As explained in greater detail in Notice No. 210, after the publication of T.D. TTB-165, TTB received a petition from a South African wine exporter requesting the approval of 330 milliliters as a standard of fill for wine. The petitioner stated that 330 milliliters is the standard can size for beer and soda products in South Africa and in most European countries.
Five commenters (Comments 13, 31, 32, 159, and 180) specifically support approval of a 330 milliliter size. Commenters include Ikhaya Wines LLC, Future Proof Brands, and Ball Corporation. Ikhaya Wines LLC (Comments 31 and 32) expresses the belief that authorizing this size will facilitate importing wines from South Africa, where 330 milliliters is a standard size for canned wines. Future Proof Brands (Comment 159) states that authorizing this size will allow American wine producers to expand their presence in European and Australian markets, where these sizes are common.
The Colorado Wine Industry Development Board (comment 69) expressed concerns about approving a 330 milliliter size noting that its proximity to the existing 375 milliliter size could cause consumer confusion.
2. Distilled Spirits
Notice No. 210A solicited comments on adding a total of 15 authorized standards of fill for distilled spirits that were raised in comments responding to Notice No. 210. A large number of commenters expressed support for the addition of specific sizes for distilled spirits as follows:
a. Distilled Spirits in Both Cans and Containers Other Than Cans
i. 3.75 and 3 Liters
Several commenters specifically support authorizing 3.75-liter and 3-liter sizes including DISCUS, The American Distilled Spirits Alliance, Milestone Brands, and FEVS. The American Distilled Spirits Alliance (Comment 198) notes that these larger sizes would "cater to consumers who prefer to purchase in bulk for cost savings or long-term use or who are conscious of their environment."
ii. 2 Liters
Two commenters specifically support these sizes (Comments 149 and 197). The Distilled Spirits Council of the United States (DISCUS, Comment 197) states that 2-liter containers for other beverages are common in the United States, and consumers are already familiar with this size.
iii. 1.5 Liters
Only one commenter (Comment 191) specifically supports this size. In its comment, FEVS states that this size is currently allowed in Europe.
iv. 500 Milliliters
Eleven commenters (Comments 5, 59, 72, 78, 109, 148, 149, 166, 191, 194, and 198) specifically support this size. Commenters include DISCUS, Milestone Brands, Takara Shuzo International, the American Distilled Spirits Alliance, and the Chinese Ministry of Commerce. Most commenters note that authorizing this size would fill the large gap between two currently-authorized sizes (375 and 700 milliliters) and would "provide container size parity with the wine and malt based RTD products available to consumers" (Comment 72).
v. 350 Milliliters
Five commenters (Comments 59, 148, 166, 191, and 198) specifically support this size. Commenters include DISCUS, Takara Shuzo International, FEVS, and the American Distilled Spirits Alliance. Allowing greater flexibility for producers and more choices for consumers were the most commonly cited reasons for supporting this size.
vi. 250 and 187 Milliliters
Four commenters specifically support these sizes (Comments 138, 163, 171, and 180). Commenters include Ball Corporation, Social Hour Cocktails, the Glass Packaging Institute, and Charbay Distillery. Ball Corporation (Comment 180) notes that these sizes would particularly benefit producers and consumers of RTD cocktails.
b. Distilled Spirits in Cans
i. 945 and 710 Milliliters
Ball Corporation (Comment 180) specifically supported these two sizes as a way to promote RTD cocktails.
ii. 700 Milliliters
Suave Spirits International (Comment 23) specifically supported this size, noting that it is a common size in European markets and would help establish uniformity in packaging sizes and reduce the number of SKUs needed to manage their products.
iii. 475 and 570 Milliliters
WISEACRE Brewing (Comment 25) and Ball Corporation (Comment 180) specifically supported these two sizes, which would fill the gap between the two currently authorized sizes (12 and 24 ounces) and allow more manufacturing options for small producers and greater choice for consumers.
iv. 331 Milliliters
DISCUS (Comments 59 and 197) and Ball Corporation (Comment 180) specifically commented on this size, noting that authorization of this size would help achieve greater operational efficiency.
c. Distilled Spirits in Containers Other Than Cans-355 Milliliters
Several commenters specifically supported this size. Commenters include Representative Glenn "GT" Thompson, Representative Austin Scott, the Glass Packaging Institute, O-I Glass, and Ball Corporation. The commenters generally state that allowing this size would provide greater consumer choice as the shift to smaller packaging formats continues to grow for both alcohol and non-alcohol beverages.
d. Other Distilled Spirits Size
TTB received a number of comments to Notice No 210A requesting additional sizes for distilled spirits containers that were not proposed in Notice Nos. 210 and 210A, because commenters did not have a chance to comment on these specific sizes we are not taking action on those at this time.
D. Harmonization of Authorized Standards for Fill Across Distilled Spirit Container Types
During the comment period for Notice No. 210, TTB received several comments pertaining to the different standards of fill for spirits in cans and containers other than cans (for example, comments 45, 52, 53, 59, 63, 71, and 75). The comments generally stated that removing distinctions between cans and other containers for distilled spirits would result in greater competition, consumer choice, and a consistency of regulation, without adding to consumer confusion. As a result, in Notice No. 210A, TTB requested comments on whether it should maintain this distinction.
[top] TTB received several comments to Notice No. 210A that address the question of harmonization of sizes for distilled spirits. Most of the commenters state that the current standards of fill unfairly promote can manufacturers. Applying the same standards of fill for
The only comments in opposition were those opposed to any revision to the standards of fill generally, for example, the Mexican Chamber of the Tequila Industry (Comment 165).
E. Other Comments
TTB received a number of comments that did not address retaining or eliminating the standards of fill, the specific proposed standards of fill sizes, or the harmonization of authorized standards of fill across distilled spirits container types. We note that we will not be addressing those comments in this rulemaking as they are outside of its scope.
IV. TTB Analysis
As discussed previously, TTB received comments that express support for eliminating the standards of fill, asserting that eliminating the standards will provide them with greater flexibility to meet consumer demands and grow their businesses. TTB received comments that oppose eliminating the standards of fill. These commenters contend that eliminating the standards of fill would cause consumer confusion and potentially lead to a proliferation of differing State container size requirements that could cause further consumer confusion. Commenters also express concern about significant market disruption.
Based upon these comments, particularly those with regard to the potential consumer confusion, TTB believes that the appropriate action at this time is not to eliminate all standards of fill but instead to authorize all of the new standards of fill that were specifically requested and for which TTB received interest in and support for authorizing.
TTB notes that, while some commenters express support for eliminating of the standards of fill, a number of the comments themselves focus specifically upon ensuring that certain sizes, such as 473 milliliter (16 oz.) and 568 milliliter (19.2 oz) for wine and 500 milliliter for distilled spirits, were authorized. TTB believes that its authorization of these sizes largely addresses these commenters' concerns.
In light of this, TTB believes that the addition of the proposed sizes will result in many of the same benefits that were intended by proposing eliminating the standards of fill-providing bottlers with more flexibility, facilitating the movement of goods in domestic and international commerce, and providing additional purchasing options to consumers, but without causing the disruption commenters expressed concerns over regarding the proposed elimination of standards of fill. TTB does recognize that the result is several authorized standards that would be close to each other, including, for wine, 187 ml (an existing standard of fill) and 180 ml (one proposed in Notice Nos. 210 and 210A) and, for distilled spirits, 350 ml (proposed in Notice No. 210A) and 355 ml (which is already authorized for distilled spirits in cans, but would be authorized for all distilled spirits containers with the elimination of distinction in standards for different type of distilled spirits containers). While TTB understands the potential for consumers in the near term to mistake the size of new containers that are close in size to other authorized containers, TTB believes the additional flexibility for industry members and broader consumer choice that authorizing the new sizes provides offsets the potential that expectations may take time to adjust. TTB also believes that the limited nature of these approvals, as opposed to eliminating all standards, similarly limits the potential for consumer confusion.
As explained in Notice No. 210A, the distinction between distilled spirits in cans and distilled spirits in containers other than cans resulted from rulemaking in the early 1990s. On September 27, 1991, TTB's predecessor, the Bureau of Alcohol, Tobacco, and Firearms (ATF), proposed differentiating between cans and containers other than cans in ATF Notice No. 725 published in the Federal Register at 56 FR 49152). There, ATF explained its view at that time that approving both 375 and 355 milliliter containers for distilled spirits would be misleading for consumers because of how close together the sizes were. However, ATF also recognized that because 355 milliliters was not an approved size, it prevented utilization of one of the most common can sizes. ATF proposed to create mutually exclusive categories of distilled spirits containers, cans and containers other than cans, with separate standards of fill authorized for each, ". . . based on the belief that cans are sufficiently distinct from other types of [distilled spirits containers], in both shape and design, so that a different standard of fill would not be confusing to the consumer." This proposal was adopted in the final rule published in the Federal Register on July 14, 1992, at 57 FR 31126. Accordingly, TTB solicited and received several comments on whether it should maintain a distinction between cans and containers other than cans consistent with this purpose.
After reviewing the comments, TTB has determined that there is no basis for maintaining the distinction between cans and other containers for distilled spirits for purposes of consumer protection. As some commenters note, consumers are already familiar with comparing net contents labels on other foods and beverages to determine if one package contains more product than another, regardless of the shape or material of the packaging. TTB currently requires net content statements on alcohol beverages, which allows consumers to do the same with distilled spirits products regardless of container type.
With regard to the comment that TTB lacks the authority to issue regulations relating to standards of fill, the commenter points to statements in the Treasury Competition Report that the standards are "no longer necessary to ensure accurate calculation of tax liabilities or to protect the revenue" and that "consumers presumably have ample information on bottle size from labeling and point of sale displays." We disagree with the proposition TTB lacks authority.
[top] As noted above, the FAA Act at 27 U.S.C. 205(e) authorizes the Secretary of the Treasury to prescribe regulations relating to the "packaging, marking, branding, and labeling and size and fill" of alcohol beverage containers "as will prohibit deception of the consumer with respect to such products or the quantity thereof . . . ." The Treasury Competition Report goes on to describe TTB plans for "future rulemaking to propose additional new standards of fill," and states that such rulemaking "should again consider eliminating the standards of fill requirements and specifically examine whether the potential impact on competition outweighs potential consumer confusion." That "future rulemaking" was Notice No. 210, which requested
V. TTB Determination
After careful analysis of the comments discussed above, TTB has decided not to eliminate the standards of fill for wine and distilled spirits. Rather, TTB is adding all sizes for which TTB sought specific comments on in Notice Nos. 210 and 210A. Based upon the comments received to those notices, TTB is authorizing the addition of the 180, 300, 330, 360, 473 (16 oz.), 550, 569 (19.2 oz), 600, 620, 700, and 720 milliliters sizes and 1.8 and 2.25 liter sizes for wine to §?4.72, and the 187, 250, 331, 350,355, 475, 500, 570, 700, 710, and 945 milliliters sizes and 1.5, 2, 3, 3.75 liter sizes for distilled spirits containers to §?5.203.
TTB is also adopting the proposal in Notice No. 210A to eliminate the distinction between standards of fill for cans and containers other than cans for distilled spirits in §?5.203. As a result, all standards of fill for distilled spirits are approved for cans and containers other than cans.
Regulatory Analysis and Notices
Regulatory Flexibility Act
TTB certifies that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule will provide wine and distilled spirits bottlers and importers with additional flexibility to use new bottle sizes if they so choose. This proposed regulation does not impose any new reporting, recordkeeping, or other administrative requirements. Accordingly, a regulatory flexibility analysis is not required.
Paperwork Reduction Act
The collection of information in this rule has been previously approved by the Office of Management and Budget (OMB) under the title "Labeling and Advertising Requirements Under the Federal Alcohol Administration Act," and assigned control number 1513-0087. This regulation will not result in a substantive or material change in the previously approved collection action, since the nature of the mandatory information that must appear on labels affixed to the container remains unchanged.
Executive Order 12866
It has been determined that this final rule is not a significant regulatory action as defined in Executive Order 12866, as amended. Therefore, a regulatory assessment is not necessary.
Inapplicability of the Delayed Effective Date Requirement
Because these regulations relieve a restriction by providing wine and distilled spirits bottlers and importers with additional flexibility to use new bottle sizes if they so choose, and do not impose any new reporting, recordkeeping, or other administrative requirements, it has been determined, pursuant to 5 U.S.C. 553(d)(1), that these regulations will be issued without a delayed effective date.
List of Subjects
27 CFR Part 4
Advertising, Alcohol and alcoholic beverages, Consumer protection, Customs duties and inspection, Export, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Wine.
27 CFR Part 5
Advertising, Alcohol and alcoholic beverages, Consumer protection, Customs duties and inspection, Exports, Imports, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements.
27 CFR Part 24
Administrative practice and procedure, Claims, Electronic funds transfers, Excise taxes, Exports, Food additives, Fruit juices, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Research, Scientific equipment, Spices and flavorings, Surety bonds, Vinegar, Warehouses, Wine.
Amendment to the Regulations
For the reasons discussed in the preamble, TTB amends 27 CFR parts 4, 5, and 24 as follows:
PART 4-LABELING AND ADVERTISING OF WINE
1. The authority citation for part 4 continues to read as follows:
Authority:
27 U.S.C. 205, unless otherwise noted.
2. In §?4.37, revise paragraph (b)(1) to read as follows:
§?4.37 Net contents.
(b) * * *
(1) For the metric standards of fill shown in table 1 to paragraph (b)(1), the equivalent U.S. measures are:
| Metric measure | Equivalent U.S. measure |
|---|---|
| 3 liters (L) | 101 fluid ounces (fl. oz.). |
| 2.25 L | 76.1 fl. oz. |
| 1.8 L | 60.9 fl. oz. |
| 1.5 L | 50.7 fl. oz. |
| 1 L | 33.8 fl. oz. |
| 750 milliliters (mL) | 25.4 fl. oz. |
| 720 mL | 24.3 fl. oz. |
| 700 mL | 23.7 fl. oz. |
| 620 mL | 21.0 fl. oz. |
| 600 mL | 20.3 fl. oz. |
| 568 mL | 19.2 fl. oz. |
| 550 mL | 18.6 fl. oz. |
| 500 mL | 16.9 fl. oz. |
| 473 mL | 16 fl. oz. |
| 375 mL | 12.7 fl. oz. |
| 360 mL | 12.2 fl. oz. |
| 355 mL | 12.0 fl. oz. |
| 330 mL | 11.2 fl. oz. |
| 300 mL | 10.1 fl. oz. |
| 250 mL | 8.5 fl. oz. |
| 200 mL | 6.8 fl. oz. |
| 187 mL | 6.3 fl. oz. |
| 180 mL | 6.1 fl. oz. |
| 100 mL | 3.4 fl. oz. |
| 50 mL | 1.7 fl. oz. |
3. In §?4.72, revise paragraph (a) to read as follows:
§?4.72 Metric standards of fill.
(a) Authorized standards of fill. The standards of fill for wine are the following:
(1) 3 liters.
(2) 2.25 liters.
(3) 1.8 liters.
(4) 1.5 liters.
(5) 1 liter.
(6) 750 milliliters.
(7) 720 milliliters.
(8) 700 milliliters.
(9) 620 milliliters.
(10) 600 milliliters.
(11) 568 milliliters.
(12) 550 milliliters.
(13) 500 milliliters.
[top] (14) 473 milliliters.
(15) 375 milliliters.
(16) 360 milliliters.
(17) 355 milliliters.
(18) 330 milliliters.
(19) 300 milliliters.
(20) 250 milliliters.
(21) 200 milliliters.
(22) 187 milliliters.
(23) 180 milliliters.
(24) 100 milliliters.
(25) 50 milliliters.
PART 5-LABELING AND ADVERTISING OF DISTILLED SPIRITS
4. The authority citation for part 5 continues to read as follows:
Authority:
26 U.S.C. 5301, 7805, 27 U.S.C. 205 and 207.
5. Revise §?5.203 to read as follows:
§?5.203 Standards of fill (container sizes).
(a) Authorized standards of fill. The following metric standards of fill are authorized for distilled spirits, whether domestically bottled or imported:
(1) 3.75 Liters.
(2) 3 Liters.
(3) 2 Liters.
(4) 1.8 Liters.
(5) 1.75 Liters.
(6) 1.5 Liters.
(7) 1.00 Liter.
(8) 945 mL.
(9) 900 mL.
(10) 750 mL.
(11) 720 mL.
(12) 710 mL.
(13) 700 mL.
(14) 570 mL.
(15) 500 mL.
(16) 475 mL.
(17) 375 mL.
(18) 355 mL.
(19) 350 mL.
(20) 331 mL.
(21) 250 mL.
(22) 200 mL.
(23) 187 mL.
(24) 100 mL.
(25) 50 mL.
(b) Spirits bottled using outdated standards. Paragraph (a) of this section does not apply to:
(1) Imported distilled spirits in the original containers in which entered into customs custody prior to January 1, 1980; or
(2) Imported distilled spirits bottled or packed prior to January 1, 1980, and certified as to such in a statement signed by an official duly authorized by the appropriate foreign government.
PART 24-WINE
6. The authority citation for part 24 continues to read as follows:
Authority:
5 U.S.C. 552(a); 26 U.S.C. 5001, 5008, 5041, 5042, 5044, 5061, 5062, 5121, 5122-5124, 5173, 5206, 5214, 5215, 5351, 5353, 5354, 5356, 5357, 5361, 5362, 5364-5373, 5381-5388, 5391, 5392, 5511, 5551, 5552, 5661, 5662, 5684, 6065, 6091, 6109, 6301, 6302, 6311, 6651, 6676, 7302, 7342, 7502, 7503, 7606, 7805, 7851; 31 U.S.C. 9301, 9303, 9304, 9306.
7. In §?24.255:
a. Revise paragraph (b); and
b. Remove the parenthetical authority citation at the end of the section.
The revision reads as follows:
§?24.255 Bottling or packing wine.
(b) Bottle or other container fill. (1) Proprietors of bonded wine premises and taxpaid wine bottling house premises must fill bottles or other containers as nearly as possible to conform to the amount shown on the label or blown in the bottle or marked on any container other than a bottle. However, in no event may the amount of wine contained in any individual bottle, due to lack of bottle uniformity, vary from the amount stated more than plus or minus:
(i) 1.0 percent for 15.0 liters and above;
(ii) 1.5 percent for 14.9 liters to 1.0 liter;
(iii) 2.0 percent for 750 mL to 550 mL;
(iv) 2.5 percent for 500 mL to 473 mL;
(v) 3.0 percent for 375 mL to 300 mL;
(vi) 4 percent for 250 mL and 200 mL;
(vii) 4.5 percent for 187 mL to 100 mL; and
(viii) 9.0 percent for 50 mL.
(2) In such case, there will be substantially as many bottles overfilled as there are bottles underfilled for each lot of wine bottled. Short-filled bottles or other containers of wine which are sold or otherwise disposed of by the proprietor to employees for personal consumption need not be labeled, but, if labeled, need not show an accurate statement of net contents.
Signed: January 3, 2025.
Mary G. Ryan,
Administrator.
Approved: January 3, 2025.
Aviva R. Aron-Dine,
Deputy Assistant Secretary for Tax Policy.
[FR Doc. 2025-00271 Filed 1-8-25; 8:45 am]
BILLING CODE 4810-31-P