On August 22, 2013, TTB announced that the agency will be reviewing its policy on the use of the term “gluten-free” on alcohol beverages that are regulated by TTB. See Use of “Gluten-Free” on TTB-Regulated Alcohol Beverages. This announcement is timely because, as TTB properly highlighted, the United States Food and Drug Administration (“FDA”) recently published its final rule on the term “gluten-free” on food products that fall within FDA’s jurisdiction for labeling. FDA’s final rule on gluten-free for food products was published in the Federal Register, which can be accessed here. See Food-Labeling; Gluten-Free Labeling of Foods. To comply with FDA’s new rulings, a food product that falls within FDA’s jurisdiction for labeling must contain less than 20 parts per million of gluten in order for the product to be labeled “gluten-free” or a similar phrase. See FDA Establishes Definition of ‘Gluten-Free” for Food Labels.
On its Questions and Answers page, FDA specifically noted that the final rule does not apply to food and beverage products regulated by the United States Department of Agriculture (“USDA”) and the TTB. The agency clarified that, “USDA regulates the labeling of meats, poultry, and certain egg products (FDA regulates the labeling of shell eggs). TTB regulates the labeling of most alcoholic beverages, including all distilled spirits, wines that contain 7 percent or more alcohol by volume, and malted beverages that are made with both malted barley and hops.” Questions and Answers: Gluten-Free Food Labeling Final Rule. In other words, FDA’s newly published regulation on the term “gluten-free” for food products excludes food and beverages products that fall within the labeling jurisdiction of either the USDA or TTB. However, “FDA will continue to work with USDA and TTB on the issue of gluten-free food labeling to harmonize the requirements for foods labeled gluten-free among agencies whenever possible.” Id. (Note: Some wine beverages — e.g., low volume alcohol wines — fall within the jurisdiction of FDA for labeling purposes.)
In its announcement, TTB noted that, while the agency is currently reviewing its policy on “gluten-free” labeling for TTB-regulated alcohol beverages, TTB Ruling 2012‐2, Interim Policy on Gluten Content Statements in the Labeling and Advertising of Wines, Distilled Spirits, and Malt Beverages, is still in effect for alcohol beverage products that are within the agency’s jurisdiction as under the Federal Alcohol Administration Act. See TTB Ruling 2012‐2, Interim Policy on Gluten Content Statements in the Labeling and Advertising of Wines, Distilled Spirits, and Malt Beverages. For more information, see Craft Brew Alliance One Step Closer to Being Able to Label Omission Beer as “Gluten-Free.”