The Alcohol and Tobacco Tax and Trade Bureau (TTB) issued a ruling recently that will allow the alcohol industry to voluntarily use Serving Facts statements on alcohol labels. The new TTB ruling modifies a 2004 TTB ruling that only permitted the use of a statement of average analysis. The ruling explains that a Serving Facts statement is essentially a more expansive statement of average analysis, except “with the addition of a title, a serving size that reflects how the product is typically consumed, information about the number of servings per container, a specified format, and the option of providing information about alcohol content.”

The TTB released a proposed rule in 2007 to require certain mandatory label information, including alcohol content, and calorie and nutrient information, but has yet to promulgate final regulations. Given the delay in the final regulation and the seeming narrowness of the 2004 ruling, the TTB decided that it was appropriate to issue a ruling expressly providing a labeling option for “[t]ruthful, verifiable numerical statements of alcohol content [to] be included in Serving Facts statements as an option.”

As part of the ruling, alcohol content may be declared as part of the optional Serving Facts statement as percentage of alcohol by volume. Alternatively, alcohol content may be declared as the number of U.S. fluid ounces of pure ethyl alcohol per serving, so long as that statement is accompanied by percentage of alcohol by volume.  The TTB provided five examples of optional Serving Facts statements that demonstrate possible approaches based on the new guidance.

The ruling continues the trend of allowing the alcohol industry some leeway in devising labels by permitting truthful and non-misleading speech. The trend can be traced to the 1995 Supreme Court decision in Rubin v. Coors Brewing Co., which held that the Bureau of Alcohol, Tobacco and Firearms violated the First Amendment by prohibiting the disclosure of the alcohol content of beer on labels or in advertising.