[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Proposed Rules]
[Pages 67669-67672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27733]
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DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade Bureau
27 CFR Parts 4, 5, and 7
[Docket No. TTB-2010-0008; Notice No. 111]
RIN 1513-AB79
Disclosure of Cochineal Extract and Carmine in the Labeling of
Wines, Distilled Spirits, and Malt Beverages
AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau is proposing to
revise its regulations to require the disclosure of the presence of
cochineal extract and carmine on the labels of any alcohol beverage
product containing one or both of these color additives. This proposed
rule responds to a recent final rule issued by the Food and Drug
Administration as well as reports of severe allergic reaction,
including anaphylaxis, to cochineal extract and carmine-containing
foods. This proposal would allow consumers who are allergic to
cochineal extract or carmine to identify and thus avoid alcohol
beverage products that contain these color additives.
DATES: Comments must be received on or before January 3, 2011.
ADDRESSES: You may send comments on this notice to one of the following
addresses:
http://www.regulations.gov: Use the online comment form
for this notice as posted within Docket No. TTB-2010-0008 at
``Regulations.gov,'' the Federal e-rulemaking portal, to submit
comments via the Internet;
Mail: Director, Regulations and Rulings Division, Alcohol
and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-
4412; or
Hand Delivery/Courier in Lieu of Mail: Alcohol and Tobacco
Tax and Trade Bureau, 1310 G Street, NW., Suite 200-E, Washington, DC
20005.
See the Public Participation section of this notice for specific
instructions and requirements for submitting comments, and for
information on how to request a public hearing.
You may view copies of this notice and any comments we receive
about it within Docket No. TTB-2010-0008 at http://www.regulations.gov.
A direct link to this docket is posted under Notice No. 111 on the TTB
Web site at http://www.ttb.gov/regulations_laws/all_rulemaking.shtml.
You also may view copies of this notice and the comments we receive
about it by appointment at the TTB Information Resource Center, 1310 G
Street, NW., Washington, DC 20220. Please call 202-453-2270 to make an
appointment.
FOR FURTHER INFORMATION CONTACT: Lisa M. Gesser, Regulations and
Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box
128, Morganza, MD 20660; telephone (301) 290-1460; or Joanne C. Brady,
Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade
Bureau, P.O. Box 45797, Philadelphia, PA 19149; telephone (215) 333-
7050.
SUPPLEMENTARY INFORMATION:
I. TTB's Authority To Prescribe Alcohol Beverage Labeling Regulations
Section 105(e) of the Federal Alcohol Administration Act (FAA Act),
codified at 27 U.S.C. 205(e), sets forth standards for regulation of
the labeling of wine (containing at least 7 percent alcohol by volume),
distilled spirits, and malt beverages, generally referred to as
``alcohol beverage products'' throughout this notice. This section
gives the Secretary of the Treasury the authority to issue regulations
to prevent deception of the consumer, to provide the consumer with
``adequate information'' as to the identity and quality of the product,
to prohibit false or misleading statements, and to provide information
as to the alcohol content of the product. Section 105(e) of the FAA Act
also
[[Page 67670]]
requires that a person obtain a certificate of label approval for all
distilled spirits, wine, or malt beverages introduced into interstate
or foreign commerce before bottling the product or removing the product
from customs custody, in accordance with regulations prescribed by the
Secretary.
The labeling provisions of the FAA Act also give the Secretary the
authority to prohibit, irrespective of falsity, statements relating to
age, manufacturing processes, analyses, guarantees, and scientific or
irrelevant matters that are likely to mislead the consumer. In the case
of malt beverages, the labeling provisions of the FAA Act apply only if
the laws of the State into which the malt beverages are to be shipped
impose similar requirements. TTB is responsible for the administration
of the FAA Act and the regulations promulgated under it.
II. Background on Cochineal Extract and Carmine
Cochineal extract is an insect-derived color additive that is
permitted for use in foods, including alcohol beverage products, and
drugs in the United States. The related color additive carmine is
permitted for use in foods, including alcohol beverage products, drugs,
and cosmetics. The Food and Drug Administration (FDA) has listed these
color additives, and conditions for their safe use in foods, in Sec.
73.100 of title 21 of the Code of Federal Regulations (21 CFR 73.100).
On January 30, 2006, FDA published a proposed rule in the Federal
Register (71 FR 4839) to amend its requirements for cochineal extract
and carmine by requiring their declaration on the labels of all food
and cosmetic products that contain these color additives. More
specifically, for food products, FDA proposed to amend the color
additive regulations that permit the use of cochineal extract or
carmine in foods (21 CFR 73.100) by adding a new requirement that all
foods which contain cochineal extract or carmine specifically declare
that fact in the ingredient statement of the food label by using its
respective common or usual name, ``cochineal extract'' or ``carmine.''
FDA explained that the proposal was issued in response to reports
of severe allergic reactions, including anaphylaxis, to cochineal
extract and carmine-containing foods and cosmetics. The proposal was
also in response to a 1998 citizen petition from the Center for Science
in the Public Interest, which asked the FDA to take action to protect
consumers who are allergic to cochineal extract and carmine.
The preamble to FDA's proposed rule describes, in detail, several
instances and studies in which allergic reactions occurred. One of the
referenced articles described allergic reactions (including
anaphylaxis) experienced by five patients after ingesting the alcohol
beverage product Campari, which, according to FDA's preamble, contained
carmine. All five patients were women; three had a history of allergic
respiratory disease, one had only non-clinical sensitivity to mugwort,
and one was nonatopic (had no history of allergy). The time period
between ingestion and onset of allergic reaction was given for four
patients and varied from 15 minutes to 30 minutes. Two of the five
patients reportedly experienced ``severe'' anaphylactic reactions. Of
these two, one required hospitalization while the other was treated
with inhalers and intravenous antihistamine. The remaining three
experienced angioedema (tissue swelling). See 71 FR 4842.
The preamble to FDA's proposed rule further explains as follows:
``Allergic reactions to cochineal extract and/or carmine in a variety
of foods (grapefruit juice, the alcohol beverage Campari, a popsicle,
candy, yogurt, and artificial crabmeat) and [certain] cosmetics * * *
have been reported in scientific and medical literature since 1961.''
71 FR 4839-4840. Since 1994, FDA has received 11 adverse event reports
of allergic reactions, including anaphylaxis, experienced by
individuals after eating food or drinking a beverage containing
cochineal extract or carmine, or using cosmetics colored with carmine.
FDA solicited comments from all interested parties in response to
their proposal to require the listing of these color additives. As a
result, FDA received a total of 159 responses.
On January 5, 2009, FDA published a final rule in the Federal
Register (74 FR 207) which addressed the comments submitted and
finalized the regulatory changes as proposed by adding a new
requirement that all foods containing cochineal extract or carmine
specifically declare that fact in the ingredient statement of the food
label by using its respective common or usual name, ``cochineal
extract'' or ``carmine.'' The final rule takes effect on January 5,
2011.
In light of FDA's official recognition of evidence linking the
presence of cochineal extract and carmine in foods and beverages to a
health risk for a small percentage of consumers, TTB believes that it
is appropriate to require the disclosure of cochineal extract and
carmine on the labels of the alcohol beverage products that it
regulates. While TTB believes that the use of these color additives in
the manufacture of alcohol beverage products is relatively rare, at
least one such alcohol product contained the color additive carmine, as
evidenced by the FDA's rulemaking record.
We also note that similar action has been taken in the past. On
October 6, 1983, TTB's predecessor agency, the Bureau of Alcohol
Tobacco and Firearms (ATF) published a final rule (T.D. ATF-150, 48 FR
45549), rescinding the ingredient labeling regulations for alcohol
beverage products. However, mandatory label disclosure was required for
alcoholic beverages containing the color additive FD&C Yellow No. 5.
The Bureau found, as a result of its rulemaking effort, that there was
evidence establishing that consumers of the few alcohol beverage
products containing that color additive could have adverse reactions to
the ingredient. Pursuant to T.D. ATF-150, the Bureau specifically
stated that it ``will look at the necessity of mandatory labeling of
other ingredients on a case-by-case basis through its own rulemaking
initiative, or on the basis of petitions for rulemaking under 5 U.S.C.
553(e) and 27 CFR 71.41(c).''
In that regard, ATF published a final rule in the Federal Register
requiring mandatory label disclosure of saccharin for alcoholic
beverages containing that artificial sweetener (T.D. ATF-220; December
20, 1985, 50 FR 51851), which was subsequently removed as a requirement
by TTB in 2004 (T.D. TTB-12; June 16, 2004, 69 FR 33572). ATF also
published a final rule requiring label disclosure of sulfites when
present in alcoholic beverages at a level of ten or more parts per
million (T.D. ATF-236; September 30, 1986, 51 FR 34706).
In determining whether there is a need to require label disclosure
of specific ingredients in alcoholic beverages, ATF traditionally
utilized the expertise of the Food and Drug Administration (FDA). In
1987, FDA and ATF entered into a memorandum of understanding (52 FR
45502, November 30, 1987), to clarify the enforcement responsibilities
of each agency with respect to alcohol beverages. ATF agreed that
``when FDA has determined that the presence of an ingredient in food
products, including alcoholic beverages, poses a recognized public
health problem, and that the ingredient or substance must be identified
on a food product label, ATF would initiate rulemaking proceedings to
promulgate labeling regulations for alcoholic beverages consistent with
ATF's health policy with respect to alcoholic
[[Page 67671]]
beverages.'' TTB operates under the same memorandum of understanding
with FDA.
Accordingly, TTB proposes to amend the TTB regulations to require
that each alcohol beverage product containing the color additive
cochineal extract or carmine disclose that information on the product's
label.
III. Format and Placement of Disclosure
TTB proposes that all alcohol beverage products that contain the
color additive cochineal extract or carmine must declare the presence
of the additive on the brand label or on a back label, prominently and
conspicuously, using its respective common or usual name ``cochineal
extract'' or ``carmine''. (For example: ``Contains: Cochineal Extract''
or ``Contains carmine as a color additive.'').
IV. Implementation Date
TTB believes that this proposed new regulatory requirement will
require revisions to the labels of very few alcohol beverage products.
Accordingly, TTB proposes an implementation date of 90 days after the
date the final rule is published in the Federal Register. Upon
implementation of the final rule, the label of an alcohol beverage
product subject to the requirement for disclosure of cochineal extract
and carmine would have to bear the mandatory statement at the time of
its removal from bond or from customs custody in bottles. TTB seeks
comments from affected industry members as to whether 90 days is a
sufficient amount of time to incorporate these changes.
V. Public Participation
A. Comments Invited
We invite comments from interested members of the public on this
proposed rulemaking.
B. Submitting Comments
You may submit comments on this notice by using one of the
following three methods:
Federal e-Rulemaking Portal: You may send comments via the
online comment form linked to this notice in Docket No. TTB-2010-0008
on ``Regulations.gov,'' the Federal e-rulemaking portal, at http://www.regulations.gov. Direct links to the comment form and docket are
available under Notice No. 111 on the TTB Web site at http://www.ttb.gov/regulations_laws/all_rulemaking.shtml. Supplemental files
may be attached to comments submitted via Regulations.gov. For
information on how to use Regulations.gov, click on the site's Help or
FAQ tabs.
U.S. Mail: You may send comments via postal mail to the
Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and
Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.
Hand Delivery/Courier: You may hand-carry your comments or
have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau,
1310 G Street, NW., Suite 200-E, Washington, DC 20005.
Please submit your comments by the closing date shown above in this
notice. Your comments must reference Notice No. 111 and include your
name and mailing address. Your comments also must be made in English,
be legible, and be written in language acceptable for public
disclosure. We do not acknowledge receipt of comments, and we consider
all comments as originals.
If you are commenting on behalf of an association, business, or
other entity, your comment must include the entity's name as well as
your name and position title. If you comment via Regulations.gov,
please include the entity's name in the ``Organization'' blank of the
comment form. If you comment via postal mail, please submit your
entity's comment on letterhead.
You may also write to the Administrator before the comment closing
date to ask for a public hearing. The Administrator reserves the right
to determine whether to hold a public hearing.
C. Confidentiality
All submitted comments and attachments are part of the public
record and subject to disclosure. Do not enclose any material in your
comments that you consider to be confidential or that is inappropriate
for public disclosure.
D. Public Disclosure
On the Federal e-rulemaking portal, Regulations.gov, we will post,
and the public may view, copies of this notice, selected supporting
materials, and any electronic or mailed comments we receive about this
proposal. A direct link to the Regulations.gov docket containing this
notice and the posted comments received on it is available on the TTB
Web site at http://www.ttb.gov/regulations_laws/all_rulemaking.shtml
under Notice No. 111. You may also reach the docket containing this
notice and the posted comments received on it through the
Regulations.gov search page at http://www.regulations.gov.
All posted comments will display the commenter's name, organization
(if any), city, and State, and, in the case of mailed comments, all
address information, including e-mail addresses. We may omit voluminous
attachments or material that we consider unsuitable for posting.
You and other members of the public may view copies of this notice,
all related petitions, maps and other supporting materials, and any
electronic or mailed comments we receive about this proposal by
appointment at the TTB Information Resource Center, 1310 G Street, NW.,
Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- x
11-inch page. Contact our information specialist at the above address
or by telephone at 202-453-2270 to schedule an appointment or to
request copies of comments or other materials.
VI. Regulatory Analysis and Notices
A. Regulatory Flexibility Act
We certify under the provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. We believe that the proposed rule, if adopted, will not
impose, or otherwise cause, a significant increase in reporting,
recordkeeping, or other compliance burdens on a substantial number of
small entities as very few alcohol beverages are made using cochineal
extract or carmine as color additives. We specifically solicit comments
on the number of small producers, bottlers, and importers of alcohol
beverages that may be affected by this proposed rule and the impact of
this rule on those small businesses. We ask any small business that
believes that it would be significantly affected by this proposed rule
to submit a comment and explain how the rule would affect it.
B. Executive Order 12866
We have determined that this proposed rule is not a significant
regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required.
C. Paperwork Reduction Act
The revisions to collections of information contained in this
notice of proposed rulemaking have been submitted to the Office of
Management and Budget (OMB) for review in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection
of information may be sent by e-mail to [email protected] or
by postal mail to Shagufta Ahmed, Office of Management and Budget,
Attention: Desk Officer for the Department of the
[[Page 67672]]
Treasury, Office of Information and Regulatory Affairs, Room 10235,
Washington, DC 20503. A copy should also be sent to the Alcohol and
Tobacco Tax and Trade Bureau by any of the methods previously
described. Because OMB must complete its review of the collection of
information between 30 and 60 days after publication, comments on the
information collection should be submitted not later than December 3,
2010. Comments are specifically requested concerning:
Whether the proposed collections of information are
necessary for the proper performance of the functions of the Alcohol
and Tobacco Tax and Trade Bureau, including whether the information
will have practical utility;
The accuracy of the estimated burden associated with the
proposed revision of the collection of information (see below);
How to enhance the quality, utility, and clarity of the
information to be collected;
How to minimize the burden of complying with the proposed
revision of the collection of information, including the application of
automated collection techniques or other forms of information
technology; and
Estimates of capital or start-up costs and costs of
operation, maintenance, and purchase of services to provide
information.
The collection of information in this proposed regulation is in 27
CFR Sections 4.32, 5.32, and 7.22, and involves mandatory disclosures
of information on labels. This information is required to prevent
deception of the consumer and to provide the consumer with adequate
information as to the identity and quality of the alcohol beverage
product. The likely respondents are businesses or other for-profit
institutions, including partnerships, associations, and corporations.
This information constitutes only a portion of the labeling
information on alcohol beverages required under authority of the
Federal Alcohol Administration Act (FAA Act). OMB has previously
approved a collection of information for Labeling and Advertising
Requirements Under the FAA Act, under control number 1513-0087. The
current burdens of this existing collection are:
Estimated Number of Respondents: 7,071.
Estimated Total Annual Burden Hours: 7,071.
Because the proposed disclosure required under this regulation
would affect an extremely small number of respondents, the burden
estimate associated with this collection of information, in light of
the collective burden, is minimal and is expected to contribute only a
negligible additional burden beyond that already accounted for under
control number 1513-0087.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by OMB.
VII. Drafting Information
The principal authors of this document are Lisa M. Gesser and
Joanne C. Brady, Regulations and Rulings Division, Alcohol and Tobacco
Tax and Trade Bureau.
List of Subjects
27 CFR Part 4
Administrative practice and procedure, Advertising, Customs duties
and inspection, Imports, Labeling, Packaging and containers, Reporting
and recordkeeping requirements, Trade practices, Wine.
27 CFR Part 5
Administrative practice and procedure, Advertising, Customs duties
and inspection, Distilled spirits, Imports, Labeling, Packaging and
containers, Reporting and recordkeeping requirements, Trade practices.
27 CFR Part 7
Administrative practice and procedure, Advertising, Customs duties
and inspection, Imports, Labeling, Malt beverages, Reporting and
recordkeeping requirements, Trade practices.
For the reasons discussed in the preamble, TTB proposes to amend 27
CFR, chapter 1, parts 4, 5, and 7, as set forth below:
PART 4--LABELING AND ADVERTISING OF WINE
1. The authority citation for 27 CFR part 4 continues to read as
follows:
Authority: 27 U.S.C. 205, unless otherwise noted.
2. In Sec. 4.32, paragraph (d) is added to read as follows:
Sec. 4.32 Mandatory label information.
* * * * *
(d) Declaration of cochineal extract or carmine. There shall be
stated on the brand label or on a back label a statement that the
product contains the color additive cochineal extract or carmine,
prominently and conspicuously, using its respective common or usual
name ``cochineal extract'' or ``carmine,'' where that coloring material
is used in a product removed on or after February 1, 2011. (For
example: ``Contains: Cochineal Extract'' or ``Contains carmine as a
color additive'' or, if applicable, ``Contains: Cochineal Extract and
Carmine.'').
* * * * *
PART 5--LABELING AND ADVERTISING OF DISTILLED SPIRITS
3. The authority citation for 27 CFR part 5 continues to read as
follows:
Authority: 26 U.S.C. 5301, 7805, 27 U.S.C. 205.
4. In Sec. 5.32, paragraph (b)(6) is added to read as follows:
Sec. 5.32 Mandatory label information.
* * * * *
(b) * * *
(6) A statement that the product contains the color additive
cochineal extract or carmine, prominently and conspicuously, using its
respective common or usual name ``cochineal extract'' or ``carmine,''
where that coloring material is used in a product removed on or after
February 1, 2011. (For example: ``Contains: Cochineal Extract'' or
``Contains carmine as a color additive'' or, if applicable, ``Contains:
Cochineal Extract and Carmine.'').
* * * * *
PART 7--LABELING AND ADVERTISING OF MALT BEVERAGES
5. The authority citation for 27 CFR part 7 continues to read as
follows:
Authority: 27 U.S.C. 205.
6. In Sec. 7.22, paragraph (b)(8) is added to read as follows:
Sec. 7.22 Mandatory label information.
* * * * *
(b) * * *
(8) A statement that the product contains the color additive
cochineal extract or carmine, prominently and conspicuously, using its
respective common or usual name ``cochineal extract'' or ``carmine,''
where that coloring material is used in a product removed on or after
February 1, 2011. (For example: ``Contains: Cochineal Extract'' or
``Contains carmine as a color additive'' or, if applicable, ``Contains:
Cochineal Extract and Carmine.'').
Signed: August 24, 2010.
John J. Manfreda,
Administrator.
Approved: August 30, 2010.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).
[FR Doc. 2010-27733 Filed 11-2-10; 8:45 am]
BILLING CODE 4810-31-P