TTB legalizes the most popular size of wine can WG
January 04, 2021
Until last week, many canned wines sat in an odd netherworld of legality. The most popular size of wine cans, 250 ml, was technically illegal under U.S. federal law -- but a 4-pack of 250 ml cans was legal.
Last week the TTB (Alcohol and Tobacco Tax and Trade Bureau) finally issued new "standards of fill" regulations that determine what size packages of wine and spirits may be legally imported into and sold throughout the U.S.
Newly approved for wine were three popular can sizes: 355 ml (aka 12 ounces), 250 ml and 200 ml. The 250 ml cans are thus something like cannabis: they were already here anyway. Half of the canned-wine producers tracked by WICresearch.com reported in 2019 that they made wine in 250 ml cans, and a survey by the same firm showed that a plurality of consumers like that size best. Three of Food & Wine magazine's Best 15 Canned Wines listed in May 2020 were 250 ml. Now the TTB has legalized them.
"As soon as people started putting wine in cans, they wanted to use 250 ml cans," said Liz Holtzclaw, principal at Holtzclaw Compliance in Hughson, CA. "A 250 ml package was not an approved metric standard of fill in the regulations for wine. The way we've been getting around it for the last several years is we've been making a COLA for a 3- or 4-pack of these 250 ml cans that are stamped 'Not for individual sale,' and then on the box it says '1 liter.' "
But wait, you protest: if the 250 ml cans weren't allowed for individual sale, why can I buy them at Whole Foods?
"The TTB has very little jurisdiction over retailers. The TTB said we don't have any jurisdiction over what the retailers do with it once they have it in their possession," Holtzclaw told Wine Business. "TTB said, 'Yes, we know Whole Foods is buying these 4-packs and breaking them down and selling them individually even though they're marked not for individual sale. TTB said, 'Ask California ABC if they want to do anything.' California ABC said, 'This is low on the list of things we have to worry about.' "
The move to allow new can sizes was less deregulatory than what the TTB originally considered. In July 2019, the TTB published a notice of proposed rulemaking that would have eliminated all standards of fill for wine and spirits, save for requiring a minimum of 50 ml. But the industry mounted a campaign to prevent that from happening.
The TTB published this statement last week in the Federal Register: "TTB received 1,141 comments that oppose eliminating the standards of fill (including the 937 nearly identical comments from individuals associated with three industry members). These commenters contended that eliminating the standards of fill would cause consumer confusion and potentially lead to a proliferation of differing State container size requirements that could cause further consumer confusion. Commenters also expressed concern about significant market disruption."
"A few years ago people proposed, let's just get rid of standards of fill altogether," Holtzclaw said. "But there's a good reason not to. Right now, 38 states use the federal standards of fill for state purposes. If we got rid of the federal standards of fill, it would be balkanized and every state would have its own standards."
New York Senator Chuck Schumer claimed credit for the TTB's move to many New York media organizations, saying in a statement, “Although it was already a heavy-hitter, New York’s $4.8 billion wine industry was left hanging on the vine by TTB’s outdated rules and restrictions. Today’s decision to allow winemakers to sell their products in the most popular-sized cans will lead to further economic growth and allow producers to capitalize on an explosive trend. I’m proud to have helped New York’s wine industry cut through the bureaucratic red tape, can regulations that weren’t helping anybody, and uncork the full potential of the upstate economy.”
Holtzclaw said that producers who have a label approval for any size package -- even a bottle -- can use the newly legal sizes of can without the need to get a new COLA.
"There's 37 things you can change on a label without having to get a new COLA and one is standard of fill," Holtzclaw said.
But consumers probably won't see a deluge of 250 ml wine cans right away because of logistical issues.
"There was a worldwide shortage of these aluminum cans because of the size," Holtzclaw said. "And the cans have to be printed at the time they're made. You can't put on a paper label. From the standpoint of supply chain, it was causing huge problems."
Scott Osborn, president and co-owner of Fox Run Vineyards in the Finger Lakes, told the Finger Lakes Times that he doesn't expect anyone to begin canning runs in the new size until March at the earliest.
"We probably won’t be canning until May, mostly because of scheduling," Osborn told the Times.
For spirits, the newly approved sizes were driven by the sizes of bottles used by Japanese producers. Sake is classified alongside wine by the TTB and already had exemptions from the wine standards of fill, but the Japanese spirit shochu often comes in the same size bottles as sake.
The new sizes allowed for spirits are 1.8 liters, 900 ml, 720 ml and 700 ml: common sizes for sake and shochu. The TTB mentioned that these sizes received support from three Japanese trade associations and the Japanese National Tax Agency. The U.S. made a trade agreement with Japan in 2019 and agreed to allow those sizes as part of it.
The new 720 ml and 700 ml packages were approved for all spirits, not just shochu, and that may be a temptation for whisky, rum and vodka producers to sell less product for the same price.
"In the 1980s, when coffee got expensive, Folger's changed the size of its can from 16 ounces to 13 ounces so it wouldn't raise the price on the shelves," Holtzclaw said. "You can imagine if a 750 ml bottle of wine suddenly became 720 ml. Consumers wouldn't notice. For wine they did not approve 720 ml and 700 ml but they did approve it for spirits. We're just going to have to depend on consumers to be smart enough to look at the label and see what the net contents are."