Wine in a 250 ML can – the Mystery of the TTB packaging Regulations and Solving the Problem by Amending the Regulations

By: John Hinman and Barbara Snider

June 3, 2019

We are committed to rational regulation and, even though we occasionally criticize the regulators for overzealous enforcement of vague regulations, we nonetheless well understand that agency discretion is limited by the enabling regulations. Today we are encouraging the TTB to exercise their discretion (via the rule-making process) and authorize wine in a 250 ml can – the most popular size for single serve wine in use in the world today. Not a day goes by that doesn’t surface a success story about marketing wine in a can.

But wait you say, we can already package wine in a 250 ml can if we include two or four cans in an “aggregate” package the equals 500 or 1,000 ml!  That is true. However, that begs the question of how does a consumer only buy one can? 

The current system requires that a purchaser buy at least two (and more often four) drinks to get one. Maybe that’s good for revenue but it also encourages excessive consumption, creates packaging nightmares (because single cans can’t be individually priced), results in wide-spread confusion at venues where the size is the most popular and is potentially actionable by the TTB as a regulatory violation if 250 ml can sizes are individually marketed by a producer.

We (as a firm and behalf of our many winery clients who package wine in 250 ml cans) have submitted extensive comments to the TTB urging adoption of the 250 ml package size. We are asking each reader to submit comments to the TTB supporting our comments.  There is strength in numbers and acting as an industry we can effectuate responsible change without conflict. 

We do not know of any opposition from the trade associations or other principals in the industry (most of whom also support this rule change); and can’t imagine why there would be opposition. The enemy here is not the TTB or affected industry members – it’s regulatory inertia.

The Rule-Making Process, Aggregate Packaging and Competition

The TTB is right now engaged in Rulemaking. Notice 176 (titled “Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages”) has been published in the Federal Register.  Part of this Rulemaking is to codify “Aggregate Packaging” rules. “Aggregate Packaging” is used when an individual container does not comply with the adopted “Standards of Fill” set forth for wine and spirits in the Code of Federal Regulations and the individual containers are combined with other containers to meet one of the Standards of Fill. This has been the historic work around used by producers of canned wine.

The existing Standards of Fill for wine[i] allow a container of wine to be 187ml and 375ml but skips over the 250ml size.  Unless the 250ml size is added to these Standards of Fill for wine, the many wineries producing or desiring to produce wine in the 250 ml size will continue to be subject the “aggregate packaging” procedures to be adopted in this Rulemaking.   

Failure to adopt the 250ml size for wine will continue the distinct competitive disadvantage affecting wineries in the overall alcoholic beverage industry.  Wineries are prohibited from selling individual 250ml cans of wine to consumers. However, malt beverages (including FMB’s – flavored malt beverages marketed as cocktails) have no standard of fill and have no such restrictions.  Malt beverage manufacturers may and do sell individual 250ml cans. There is no rational reason for the disparity.

The Hinman & Carmichael LLP Comments – Review of History, Use and Consumer Studies

We filed Notice 176 comments with the TTB on May 6, 2019. You may read our full Comments by clicking here.

The reasons for recommending adding the 250ml size to the Standards of Fill for Wine are:  

·         There has been tremendous growth in using the 250 ml standard of fill.

·         The rationale leading to the 1999 ATF Rule-making adopting the 500ml size is identical and should be consistently applied.

·         The codification of the aggregate packaging rules being used will require wineries to package 250ml size cans and file multiple applications for “aggregate packaging” that burden both the TTB and the wineries and prohibiting the sale of individual 250ml cans for wine.

·         The growth of consumer demand for the 250ml size can and ease of use of a can.

·         The 250ml size is the right size for a single serving and encourages temperate consumption.

·         Because of the widespread use of cans for alcoholic beverages in today’s market, adding the 250ml size for wine will not create consumer confusion.

·         University studies have demonstrated consumer support for the 250ml standard of fill for wine.

·         The 250ml size is necessary for wineries to have fair competition between wine and malt beverage products.

·         The 250ml can size creates convenience, occasion expansion and portion control.

·         There has been an exponential growth in wine-in-a-can product offerings over the past five years.

·         The has been significant technological growth in canning technology.

·         The last time the Standards of Fill for Wine were updated was in 1990 when the 500ml size was added. As part of the modernization of labels and advertising, it is also time to modernize the Standards of Fill for wine by adding the 250ml size.

Continuing to require wineries to package 250ml cans of wine in an “aggregate package” and prohibiting the sale of individual 250ml cans of wine has a significant negative impact on wineries competing in the alcoholic beverages market.

The wine-in-a-can market has grown exponentially over the past decade. This is a market here to stay.  The 250ml can is the most popular and demanded size worldwide for wine in a can. Focusing on the international market, the United States is the only country in which a winery may not sell a 250ml can as a single, individual purchase.   

The primary purpose of the “aggregate packaging” rules (according to the TTB) is “to avoid consumer confusion with unusual sizes” such as containers for individual ice cream or dairy creamer products. The proposed “aggregate packaging” rules simply add an extra layer of bureaucracy and paperwork on top of the regular label approval process. Besides applying for label approval, the winery must file an additional application for approval of the packaging (requiring that it be difficult to remove just one can) and print on each can in the package, “not for individual sale” adding time and expense to the label approval. Special UPC codes are also an issue because, technically, individual cans cannot be scanned as separate products.

Modernizing the Standards of Fill for wine by adding the 250ml size would avoid unnecessary time and effort by both the TTB and the wineries in the label approval process.

Our request is to add only this one size to the Standards of Fill. The rationale that the ATF (Alcohol, Tobacco & Firearms bureau) used in adopting the addition of the 500ml size to the Standards of Fill for wine over 20 years ago (the last time the standard of fill issue was addressed) apply as well in this proceeding.

The Texas Tech Wine Marketing Research Institute Studies and Global Competition

Our Comments present findings from researchers at the Texas Tech University, Texas Wine Marketing Research Institute. They recently released a new comprehensive study: “Growth of the Wine-In-A-Can Market”. This study provides data demonstrating the wine-in-a-can market is a new segment of the industry growing exponentially. The Texas Tech study verifies that the 250ml size is the most demanded across the globe for wine-in-a-can packaging.

Adding the 250ml size to the Standards of Fill for wine will allow U.S. wineries to fairly compete in the global marketplace; particularly with malt beverages which have no standard of fill requirements.  The 250ml size provides convenience and portion control for the consumer. Adding the 250ml size for wine in a can will contribute to sustainability and moderation with portion control. Adding the 250ml size will modernize wine labeling in regarding the rapidly expanding international wine-in-a-can market. 

As our comments concluded:

“Ample precedent and evidence support the TTB adding the one 250ml size to the Standards of Fill for wine as part of this Rulemaking proceeding.  The innovation of special linings for cans that keep wine from touching the aluminum in a can has led to exponential growth in the wine in a can market and worldwide, the most demanded and popular size for wine in a can is the 250ml.  This trend will continue and TTB should not adopt rules that disadvantage U.S. winemakers in a competitive market by requiring them to package the 250ml in “aggregate packaging”. 

What can you do?

We urge all parties interested in this issue to follow the steps outlined below and file your own brief Comments in this Rulemaking supporting the addition of the 250ml size to the Standards of Fill for wine.  It’s simple to do and it’s important for the TTB to see support from individual retail, wholesale and producer industry members, and from consumers who care.

You need not file a separate formal document, you can just put brief Comments (such as “we endorse the Hinman & Carmichael LLP comments to Notice 176”) in the space provided on the website.

The cutoff for Comments to be filed is June 26th.

Instructions on how to file your own brief Comments:

·         go to: regulations.gov,

·         type in “TTB Rulemaking No. 176”

·         click on the link to Rulemaking No. 176

·         click on the “Comment Now” blue button on the top right side

·         Add your Comment

We look forward to a strong industry response and success in having the TTB change the Standards of Fill for wine to include the 250 ml size. 

If enough of us speak we will succeed in accomplishing positive change.

[i] Code of Federal Regulations: 27 C.F.R. § 4.72

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