Diageo Comment; Top 7 Things to Know

by Robert C. Lehrman on January 29, 2009

It is likely that all beer, wine and spirits labels will change dramatically in the near future. TTB has been working on new rules since CSPI and other groups submitted a petition in 2003. The new rules would require a “Serving Facts” panel on every container. This panel would include a lot more information, such as the typical serving size, number of servings per container, calories, carbohydrates, protein and fat. Because this is a big, controversial change, TTB has received more than 18,000 public comments during the past few years. There are far too many comments for most people to review, and so we will highlight and summarize the most noteworthy comments here. The most recent proposal and comments are here. This is comment 5 in a series; to see others, click on the “serving facts” tag below.

1. Diageo said milk, soda and most other beverages sold in the US include nutritional information “Yet, anomalously and without any good justification, this same information may not be included on the labels of alcoholic beverages.”
2. TTB cannot constitutionally forbid nutritional information while it completes its lengthy rulemaking process. The information is simple, factual, truthful, non-misleading and “the First Amendment does not countenance this form of information suppression.”
3. The government bears the burden of demonstrating that speech is misleading; bare assertions of misleadingness are not enough.
4. The idea that mathematical calculations might confuse consumers runs headlong into the Supreme Court’s repeated admonition that a paternalistic refusal to permit consumers access to truthful information is fundamentally inconsistent with the First Amendment. The First Amendment has already decided this. “It is patent that the objection to including this information on labeling is motivated by rank paternalism, in clear conflict with these basic First Amendment principles.”
5. Without a serving size benchmark, it would be impossible to specify nutritional information.
6. Alcohol per serving, in ounces or grams, is truthful and non-misleading that cannot be prohibited without a substantial interest. “Merely stating that such information is may be confusing … is not a sufficient justification for such a draconian restriction on commercial speech.”
7. Diageo applauds TTB for this effort. It’s an important step toward providing consumers with basic information, but it provides only a portion of the critical information that would help consumers decide what and how much to drink.