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Gluten-Free Labeling

gluten

Sorry to disappoint anyone, but that’s not Attorney John Messinger over to the left. But it is John, over to the right, covering Gluten-Free Labeling for Beer, Wine and Spirits, in a recent issue of Beverage Master Magazine.

The full article is here. The first few paragraphs are here:

Gluten-free foods and beverages were one of the popular trends of 2014. In the past year, over 70 new alcohol beverage label approvals mentioned “gluten-free,” which is more than the combined total of gluten-free labels in 2012 and 2013. Breweries, wineries and distilleries who wish to cater to the gluten-free diet market and provide those with celiac disease additional choices can do so, but there are a fair amount of rules and red tape to wade through. This article breaks down the federal requirements for gluten-free labeling.

Background

The Alcohol and Tobacco Tax and Trade Bureau (“TTB”) regulates the labeling and advertising for the majority alcohol beverages. In May 2012, TTB issued an interim policy on gluten content statements in the labeling and advertising of beer, wine and distilled spirits, which allowed some products to make gluten-free claims (TTB Ruling 2012-2). This policy was issued pending guidance or rulemaking by the Food and Drug Administration (“FDA”) on the subject of gluten-free claims. In August 2013, FDA issued a final rule to establish a regulatory definition of gluten-free (21 CFR 101.91). TTB revised their policy on gluten-free labeling and advertising in February 2014 to be consistent with (but not identical to) FDA’s final rule (TTB Ruling 2014-2).

What Qualifies as Gluten-Free?

TTB’s current policy does not allow alcohol beverage products to be labeled and advertised as gluten-free if they are made from or contain:

  1. “Gluten-containing grains,” meaning wheat, rye, barley or crossbred hybrids (e.g. triticale);
  2. Ingredients made from gluten-containing grains, if those ingredients have not been processed to reduce the gluten content of the ingredient to a level below 20 parts per million (ppm).

In general, wines fermented from fruit and certain distilled spirits that are produced from specific non-grain commodities (e.g. rum, tequila, vodka distilled from cherries) can be labeled or advertised as gluten-free without substantial difficulty.

John is a beer and beverage lawyer in the Washington, DC area. Read on, here.

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Beer with Lots of Protein – The Moderately Mighty Squirrel

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A couple times a year I hear about an alcohol beverage that is somehow, against all odds, “good for you.”

It happened again this week and so I eagerly rushed to the Public COLA Registry to see what was new. Lo and behold, I found the squirrel. A mighty one — or so it purports to be. The press release purported this new beer to have something like 10 times the protein compared to Bud Light.

The average analysis for Bud Light is above, to the right, and the one for Mighty Squirrel is to the left. The TTB-approved label shows the product to be a “Whey Beer.” Whey is apparently some sort of cheese protein and byproduct so I am turning this over to the cheese law blogger extraordinaire, for further elucidation.

There is no word yet, on how hard the Squirrel folks tried to push on this label. I don’t see any signs that they pushed particularly hard. For example, the rodent in question does not seem to have particularly impressive musculature (or even a tiny but visible rodent six pack). The whey, good-for-you-beer, and protein angles are not particularly new. Here is whey from way back. Here is protein from way back (in the form of Devotion, vodka with added casein). Here is good-for-you-beer from the last decade.

I can almost hear, and almost miss, the faint echo of Battle Martin directing:  “make the calf muscles smaller.”

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Gluten Free Ruling

TTB announced a big policy change — about gluten free — just before the Memorial Day holiday weekend.

For many years before the announcement, plenty of companies have tried to make “gluten free” claims, but we still didn’t see any approved TTB labels referring to “gluten free.” A few weeks back, we thought we had one, when we heard a lot of buzz about Omission beer as above. But alas, even the Omission label has had a big omission when it comes to this particular claim.

All this is about to change in a big way, as result of this TTB Ruling, released late last week. As a result, we may begin to see various gluten free claims on TTB labels in the very near future.

To show the earlier TTB policy, a fairly recent TTB rejection is here, and it may help explain why Widmer did not come out and say it louder or earlier. TTB’s caution may well have been justified; Brewbound has explained:  “The release of Omission Beer comes just a few months after a study published in the Journal of Proteome Research found that eight commercial beers currently labeled as ‘gluten-free’ contained as much gluten as regular beer.”

Brewbound further explained that there are plenty of other beers that seek to minimize or eliminate gluten, but most of the others (such as this Bard’s Tale) are made with sorghum as a substitute for malted barley:

Ordinarily a new product release wouldn’t be so newsworthy but the launch of Omission marks the first time a U.S. craft brewer has been able to produce a gluten-free beer while still using malted barley in the brew process.

In the same article, the beer company’s CEO explains:

Omission beer is brewed with malted barley, but we’ve developed a proprietary process to reduce the gluten levels to well below the internationally accepted gluten-free standard of 20 parts per million of gluten. We are currently working with the TTB and the FDA to update the definition of the term ‘gluten-free.’… The inspiration behind Omission beers was personal. I am a 12-year celiac, our brewmaster’s wife is a celiac, as are several other members of our team. … We’re also going to talk about the extensive testing that Omission beers go through to ensure that every batch of Omission beer is well below the international gluten-free standard of 20 ppm. In fact, each bottle of Omission Beer caries a date stamp connecting the brew to its specific batch. Consumers can visit www.OmissionTests.com, type in the date code stamped on their bottle, and see that beers’ test results. … An estimated three million Americans have celiac disease.

Even though there is little to no gluten talk on Omission’s approved label (so far), there is plenty of gluten talk on the brand’s website. For example, the FAQ says “Is Omission beer gluten free?  According to federal guidelines, we aren’t legally allowed to claim that Omission beer is gluten-free outside of Oregon … . While the FDA proposed to define the term ‘gluten free,'” that definition has not been formally adopted … .”

As a result of TTB Ruling 2012-2, look for Widmer and many others to push much further toward gluten free claims in the near future.

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Bacon Brown Ale

As this blog enters its fifth (gulp, yes, fifth) calendar year, it has covered many bacon-related concoctions. There was of course this bacon flavored vodka in 2009 and this bacon flavored beer in 2010.

Although it’s not clear that any of the earlier-featured bacon-related products contained actual bacon, it was only a matter of time until something like Bacon Brown Ale came along. It is Ale Brewed with Buckwheat and Bacon, made by Uncommon Brewers, of Santa Cruz, California. The brewer explains:

We’re not faking our flavor with smoked malts, Bac-O Bits or other tricks that some breweries are using to create their bacon beers … . There’s real cured pork in that beer.

Even though the government would probably not allow anything resembling a health claim regarding normal beer, wine or spirits — whether tongue in cheek or not — everyone seems to have a soft spot for bacon. The TTB-approved label does indeed proclaim that “bacon makes everything better.”

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AJ Report on Health Claims, Part 2

Continued from Part 1 of 2

AJ’s next target is MGD beer. “Probably the most blatantly illegal advertisement came in early 2009, when a new beer called MGD 64 (boasting just 64 calories) sponsored an online fitness program…” With a claim like that it would be nice to know what makes it “illegal,” if not the imagery of “a thin, toned brunette in a party dress, smiling brightly as she showed off the beer-sponsored body that users could obtain if they joined.” With little analysis or evidence, AJ summarily concludes that the marketing is “patently false and misleading.” By contrast, in my opinion, if you are going to strip most of the calories and body away from a beer, down to a puny 64 calories, you darned well have the right to market it as only 64 calories (especially when the same amount of milk, apple juice or regular beer would have 2-3 times as many calories).

The “Industry Watchdog” lays much of the blame for this sorry state of affairs at the feet of the industry’s failure to properly regulate itself:  “Finally, the most important reason for the breakdown in regulatory oversight is the continuing charade of voluntary self-regulation.” AJ says the industry has “created a system of codes, largely designed to convince policymakers they do not need to intervene, and that the industry can monitor itself” and the system is not working. But AJ would be no happier to have TTB calling the shots. AJ claims that “The government officials at TTB have little to no expertise in health. A better choice might be the Food and Drug Administration (FDA).” AJ provides not a scintilla of evidence that FDA would or could do any kind of a better job with a single one of the issues noted above. FDA might be far more likely to allow vitamins in vodka and on the label. FDA does not police the term natural more strictly compared to TTB. FDA would not be likely to restrict the use of organic claims or disallow MGD from marketing itself as low in calories.

In view of the weak examples set out by the report, and with few if any meaningful health claims getting past TTB, it is a wonder to behold what more rigorous enforcement would look like. Should the government ban imagery associated with sound, ripe fruits (because they are “wholesome” and booze is not)? Should Baileys be stripped of all rights to mention dairy cream (because it’s commonly associated with healthfulness)?

Last but not least, AJ sets its sights on the First Amendment. AJ claims:

Another charade in which the industry engages to keep regulators at bay is to argue that the free speech clause under the First Amendment protects companies from any government regulation of advertising. This makes for good political posturing, but from a legal standpoint, it’s simply not true. The First Amendment does not protect deceptive advertising. The government can and should stop such practices.

This would be damnable if it were true. Is anyone arguing the First Amendment protects companies from all advertising regulations? The part that’s simply not true is to suggest that a meaningful number of alcohol beverage companies make this claim. I am not aware of any alcohol beverage company above a handful of employees that has or would make an extravagant claim of this sort. Most of them favor and support a wide variety of sensible controls on labeling and advertising. To put things in perspective, Dr. David J. Hanson has a detailed overview of AJ and Marin (and its funding, methods and history) here. He explains that it’s nothing new for the group to “[crusade] against First Amendment constitutional free speech rights” in pursuit of its prohibitionist agenda.

It’s not like I left out the better examples, or the better arguments. With even the protein-infused vodka (Devotion), where is the actual, documented harm, as opposed to some vague possibility? I would have liked to find more in this report with which I could agree. I do agree with the premise that alcohol beverages still, after all these years, can raise difficult societal and public health issues, and need to be regulated with seriousness and care. But because the AJ report relies so much on exaggeration, distortion and weak examples, for me the report succeeds mostly in showing there is not a substantial problem related to health claims by alcohol beverage companies.

AJ Report on Health Claims

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