ATF

Sample Block


Bureau of Alcohol, Tobacco, Firearms and Explosives


[Federal Register: June 13,
1996 (Volume 61, Number 115)]

[Proposed Rules]

[Page 30015-30017]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr13jn96-41]




[[Page 30015]]


Bureau of Alcohol, Tobacco, and Firearms


27 CFR Part 5


[Notice No. 826]

RIN 1512-AB46



Labeling of Unaged Grape Brandy (95R-018P)


AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of

the Treasury.


ACTION: Notice of proposed rulemaking.


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SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is proposing

to amend the regulations to permit the optional use of the word

``unaged'', instead of ``immature'', to describe grape brandy which has

never been stored in oak containers. ATF believes that the proposed

regulations provide industry members with greater flexibility in

labeling their unaged grape brandy, while ensuring that the consumer is

adequately informed as to the identity of the product.

The proposed amendment is part of the Administration's Reinventing

Government effort to reduce regulatory burdens and streamline

requirements.


DATES: Written comments must be received on or before September 11,

1996.


ADDRESSES: Send written comments to: Chief, Wine, Beer and Spirits

Regulations Branch; Bureau of Alcohol, Tobacco and Firearms; P.O. Box

50221; Washington, DC 20091-0221; ATTN: Notice No. 826.


FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Wine, Beer and

Spirits Regulations Branch, Bureau of Alcohol, Tobacco and Firearms,

650 Massachusetts Avenue, NW., Washington, DC 20226 (202-927-8230).


SUPPLEMENTARY INFORMATION:


Background


Section 105(e) of the Federal Alcohol Administration Act (FAA Act),

27 U.S.C. 205(e), vests broad authority in the Director of ATF, as a

delegate of the Secretary of the Treasury, to prescribe regulations

intended to prevent deception of the consumer, and to provide the

consumer with adequate information as to the identity and quality of

the product.

Regulations which implement the provisions of section 105(e), as

they relate to distilled spirits, are set forth in Title 27, Code of

Federal Regulations (CFR), Part 5. Subpart C of Part 5 sets forth the

standards of identity for distilled spirits for labeling and

advertising purposes. Section 5.22(d)(1) provides, in part, that

``fruit brandy'' is brandy distilled solely from the fermented juice or

mash of whole, sound, ripe fruit, or from standard grape, citrus, or

other fruit wine. Fruit brandy, derived from grapes, must be designated

as ``grape brandy'' or ``brandy''. This section further provides that

in the case of brandy (other than neutral brandy, pomace brandy, marc

brandy, or grappa brandy) distilled from the fermented juice, mash, or

wine of grapes, or the residue thereof, which has been stored in oak

containers (i.e., ``aged'') for less than 2 years, the statement of

class and type must be immediately preceded, in the same size and kind

of type, by the word ``immature'' (e.g., ``immature grape brandy'',

``immature brandy'', ``immature residue brandy''). As a result of this

section, brandy which has never been aged in oak containers is also

labeled as ``immature.''


Petition


ATF has received a petition, dated July 10, 1995, filed on behalf

of a domestic brandy producer, requesting an amendment of the

regulations concerning the labeling of grape brandy which has never

been stored in oak containers. The petitioner wishes to produce and

market a clear, unaged grape distillate which the petitioner states

will have distinct varietal characteristics without the influence of

wood extracts. According to the petitioner, aging such a distillate in

oak containers for 2 years would remove most, if not all, of the

varietal character. The petitioner states that an amendment of the

regulations is needed ``so this style of brandy can be made and labeled

in a manner that will not cause consumer deception or rejection based

on the negative use of the word `immature' as now required.''

Therefore, the petitioner has requested an amendment of section

5.22(d)(1) that would add a new sentence that states:


Grape brandy which has not been aged in wood and does not have

added coloring may use the statement `unaged' in lieu of `immature'.


Discussion


The requirement to label grape brandy which has not been stored in

oak containers for a minimum of 2 years as ``immature'' dates back to

May 25, 1956, with the publication in the Federal Register of T.D. 6174

(21 FR 3535). The need for such rulemaking was brought out in the

December 1, 1955, hearing which preceded T.D. 6174. In his opening

remarks at that hearing the Director of the Alcohol and Tobacco Tax

Division, Internal Revenue Service, Department of the Treasury, stated:


The single proposal contained in the notice has as its objective

an improvement in the existing quality standards for grape brandy.

Heretofore no minimum age has been specified for this product, the

only requirement contained in the regulations with respect to young

brandy being that an age statement must appear upon the brand label

of any brandy which has not been aged for at least two years.


The proposal precluded the use of the unqualified term ``brandy''

or ``grape brandy'' on the label of any grape brandy stored in wood

containers less than 2 years.

According to a trade association representing the California wine

and brandy industry, the amendment of the regulations was necessary

``to advise the consumer more adequately as to the difference between a

proper standard brandy and a product that is only potentially a brandy

because of the inadequacy of its age.''

Several alternative proposals were offered in the Notice of Hearing

(November 19, 1955; 20 FR 8574) to describe grape brandy not aged a

minimum of 2 years, including ``young brandy'', ``substandard brandy'',

and ``immature brandy''. The last designation was adopted in the final

rule.

ATF and its predecessor agencies have historically taken the

position that the material from which a spirit is distilled is the

determining factor insofar as the designation of the product is

concerned. Since 1936, with the issuance of the first distilled spirits

regulations promulgated under the FAA Act, brandy has generally been

defined in the standards of identity as an alcoholic distillate

obtained from the fermented juice, mash, or wine of fruit, or from the

residue thereof, produced in such manner that the distillate possesses

the taste, aroma, and characteristics generally attributed to the

product. A newly distilled brandy has a characteristic taste and aroma,

and aging does not change these basic properties. Although

traditionally described as harsh, raw, etc., a newly distilled brandy

still has brandy character. Likewise, a newly distilled brandy will

have the same congeners (e.g., esters, aldehydes, furfurals, etc.) as

an aged brandy, although there will be a difference in the amount

present. Aging in wood generally serves to reduce or remove the harsh,

burning taste and generally unpleasant character of a brandy distillate

obtained directly from the still. This results in a smoother tasting

and less harsh product.


[[Page 30016]]


Although the material from which the spirits are distilled is the

determining factor in designating the product, ATF and its predecessors

have required modifiers on the label to further describe the final

product. For example, section 5.22(b)(1)(iii) provides that whisky

which has been aged in oak containers for a minimum of 2 years must be

further designated as ``straight.'' In the matter at hand, a review of

the earlier rulemaking record indicates that the designation ``immature

brandy'' for newly distilled spirits aged less than 2 years in wood

correctly describes the product, since the record shows that it takes

at least 2 years of aging to remove the rawness from the brandy.


Proposed Regulatory Amendments


ATF believes that a distinction should be made in the labeling of

``mature'' grape brandy, i.e., brandy which has been aged for at least

2 years, and ``immature'' grape brandy, i.e., brandy which has either

never been aged or has been aged for some period of time less than 2

years. These distinctions are necessary, pursuant to the Bureau's

responsibilities under the FAA Act, to provide the consumer with

adequate information as to the identity and quality of the product. On

the other hand, the Bureau believes in reducing the regulatory burden

placed upon the industry and providing industry members with greater

flexibility in the labeling of their products. This is consistent with

the Administration's Reinventing Government effort to reduce regulatory

burdens and streamline requirements.

ATF also believes that the word ``unaged'' accurately describes a

grape brandy which has never been stored in oak containers and, as

such, is equally as informative to consumers than the designation

``immature.'' Therefore, the Bureau is proposing to require grape

brandy that has never been aged in wood to be labeled either

``immature'' or ``unaged''. ATF believes that either word on the label

will provide consumers with adequate information as to the identity of

the product. Nevertheless, ATF is interested in comments on whether the

continued use of ``immature'' to describe brandy that has never been

aged and brandy that has been aged for some time but less than 2 years

could lead to consumer confusion. Furthermore, brandy producers will

have greater choices in labeling their products.

The proposal applies to grape brandy (other than neutral brandy,

pomace brandy, marc brandy, or grappa brandy) distilled from the

fermented juice, mash, or wine of grapes, or the residue thereof. Grape

brandy stored in oak containers for any amount of time less than 2

years must still be designated as ``immature''.

Finally, the petitioner asked that ATF prohibit the addition of

coloring to an ``unaged brandy''. Under the current regulations,

Sec. 5.23, harmless flavoring, blending, or coloring materials

(including caramel) may be added to any class and type of distilled

spirits, within certain limitations, without altering the class or type

of the distilled spirits. While ATF is not proposing to amend

Sec. 5.23, the Bureau is soliciting comments on whether there should be

any restrictions on the addition of harmless coloring, flavoring, or

blending materials in the case of unaged grape brandy.


Executive Order 12866


It has been determined that this proposed rule is not a significant

regulatory action as defined in E.O. 12866. Therefore, a regulatory

assessment is not required.


Regulatory Flexibility Act


It is hereby certified that this proposed regulation will not have

a significant economic impact on a substantial number of small

entities. The proposed rule is liberalizing in nature in that brandy

producers will have greater choices in labeling their products.

Accordingly, a regulatory flexibility analysis is not required.


Public Participation


ATF requests comments on the proposed regulations from all

interested persons. Comments received on or before the closing date

will be carefully considered. Comments received after that date will be

given the same consideration if it is practical to do so, but assurance

of consideration cannot be given except as to comments received on or

before the closing date.

ATF will not recognize any material in comments as confidential.

Comments may be disclosed to the public. Any material which the

commenter considers to be confidential or inappropriate for disclosure

to the public should not be included in the comment. The name of the

person submitting a comment is not exempt from disclosure.

Any interested person who desires an opportunity to comment orally

at a public hearing should submit his or her request, in writing, to

the Director within the 90-day comment period. The Director, however,

reserves the right to determine, in light of all circumstances, whether

a public hearing is necessary.


Disclosure


Copies of this notice and the written comments will be available

for public inspection during normal business hours at: ATF Public

Reading Room, Room 6480, 650 Massachusetts Avenue, NW, Washington, DC.


Drafting Information: The author of this document is James P.

Ficaretta, Wine, Beer and Spirits Regulations Branch, Bureau of

Alcohol, Tobacco and Firearms.


List of Subjects in 27 CFR Part 5


Advertising, Consumer protection, Customs duties and inspection,

Imports, Labeling, Liquors, Packaging and containers.


Authority and Issuance


ATF is proposing to amend Part 5 in Title 27 of the Code of Federal

Regulations as follows:


PART 5--LABELING AND ADVERTISING OF DISTILLED SPIRITS


Par. 1. 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.


Par. 2. Section 5.22(d)(1) is amended by revising the third

sentence to read as follows:



Sec. 5.22 The standards of identity.


* * * * *

(d) * * *

(1) * * * Fruit brandy, derived from grapes, shall be designated as

``grape brandy'' or ``brandy'', except that in the case of brandy

(other than neutral brandy, pomace brandy, marc brandy or grappa

brandy) distilled from the fermented juice, mash, or wine of grapes, or

the residue thereof: which has been stored in oak containers for some

period of time less than 2 years, the statement of class and type shall

be immediately preceded, in the same size and kind of type, by the word

``immature''; or which has never been stored in oak containers, the

statement of class and type shall be immediately preceded, in the same

size and kind of type, by the word ``immature'' or ``unaged''. * * *

* * * * *

Par. 3. Section 5.40 is amended by revising the first sentence in

paragraph (b) and the second proviso in paragraph (e)(2) to read as

follows:



Sec. 5.40 Statements of age and percentage.


* * * * *

(b) Statements of age for rum, brandy, and Tequila. Age may, but

need not, be stated on labels of rums, brandies, and


[[Page 30017]]


Tequila, except that an appropriate statement with respect to age shall

appear on the brand label in the case of brandy (other than immature or

unaged brandies, as provided in Sec. 5.22(d)(1), and fruit brandies

which are not customarily stored in oak containers) not stored in oak

containers for a period of at least 2 years. * * *

* * * * *

(e) * * *

(2) * * * And provided further, That the labels of whiskies and

brandies (except immature or unaged brandies, as provided in

Sec. 5.22(d)(1)) not required to bear a statement of age, and rum and

Tequila aged for not less than 4 years, may contain general

inconspicuous age, maturity or similar representations without the

label bearing an age statement.

Par. 4. Section 5.65(c) is amended by revising the last sentence to

read as follows:



Sec. 5.65 Prohibited practices.


* * * * *

(c) Statement of age. * * * An advertisement for any whisky or

brandy (except immature or unaged brandies, as provided in

Sec. 5.22(d)(1)) which is not required to bear a statement of age on

the label or an advertisement for any rum or Tequila, which has been

aged for not less than 4 years may, however, contain inconspicuous,

general representations as to age, maturity or other similar

representations even though a specific age statement does not appear on

the label of the advertised product and in the advertisement itself.

* * * * *

Signed: April 25, 1996.

Bradley A. Buckles,

Acting Director.

Approved: May 15, 1996.


Dennis M. O'Connell,

Acting Deputy Assistant Secretary, (Regulatory, Tariff and Trade

Enforcement).

[FR Doc. 96-14859 Filed 6-12-96; 8:45 am]

BILLING CODE 4810-31-U