On May 24, 2012, U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) issued an Interim Policy on Gluten Content Statements in the Labeling and Advertising of Wines, Distilled Spirits, and Malt Beverages (TTB Ruling 2012-2).
Currently, there is no Food and Drug Administration (FDA) regulation that defines the term “gluten-free”.
FDA proposed to define gluten free as:
- an ingredient that is a species of wheat, rye, barley, or a crossbred hybrid of these grains;
- an ingredient derived from these grains and that has not been processed to remove gluten;
- an ingredient derived from these grains and that has been processed to remove gluten, if the use of that ingredient results in the presence of 20 or more parts per million (ppm) gluten in the food; or
- 20 ppm or more gluten.
Pending the issuance of a final rule by FDA, TTB is providing interim guidance on the use of the term “gluten free” on alcohol beverage labels and advertisements subject to TTB’s authority.
Alcohol Products Made from Gluten-Free Materials
TTB’s position is that the term “gluten-free” will be interpreted by consumers of alcohol beverages to mean that the product contains no gluten. TTB provided the example of wine fermented from grapes, or vodka distilled from potatoes. If there are good manufacturing practices – meaning no cross-contamination, no additives, no yeast, and no storage materials with gluten – a ‘gluten-free’ claim in the labeling of the alcohol beverage will be permissible in the interim period awaiting FDA’s final rule.
Alcohol Products Made from Gluten-Containing Materials
FDA and TTB both assert that there are currently no scientifically valid testing methods to determine the gluten content of fermented products. This includes companies that undertake a process to remove the gluten from its alcohol beverages.
TTB’s position is that these methods cannot be used to substantiate a “gluten-free” claim at this time. Further, a “gluten-free” statement on labeling for a product made from gluten would be misleading.
However, the following statement is permissible: “Processed/Treated/Crafted to Remove Gluten”. This statement must be accompanied with a conspicuous qualifying statement informing the consumer:
Product fermented from grains containing gluten and [processed or treated or crafted] to remove gluten. The gluten content of this product cannot be verified, and this product may contain gluten.
– OR –
This product was distilled from grains containing gluten, which removed some or all of the gluten. The gluten content of this product cannot be verified, and this product may contain gluten.
The full interim policy can be found here.
For more information regarding your company’s strategy for remaining in compliance with FDA and TTB to break into the gluten-free consumer market, contact attorney Jennifer Diaz at (305) 260-1053 or by email at JDiaz@becker-poliakoff.com.
Jennifer Diaz is the Chair of the Customs and International Trade Department at Becker & Poliakoff, P.A. She earned her J.D. from Nova Southeastern University Shepard Broad Law Center. Jennifer is admitted to practice law in the state of Florida and is board-certified in International Law by the Florida Bar.
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