Tax money before health! Historically speaking, at least…
These days, the government seems to care quite a lot about our health. Through advertising campaigns, insurance requirements, and, of course, sin taxes, we are discouraged from partaking in all manner of vice in the name of the public good. It’s seen as the moral thing to do, and even the economic thing to do, if it prevents expensive health issues down the road.
Our leaders have always had this inclination to influence our health-related choices, but for much of our history, it simply wasn’t an option. Government, especially federal, was restricted by the limits of communication, pre-income tax federal budgets, and a sense among the population that this was not really government’s place. It wasn’t until the early 20th century, with industrialization and its attendant social movements, that the tide began to turn. 1906 brought the publication of Upton Sinclair’s infamous book The Jungle and the passing of the Federal Food and Drug Act. The Act was not really enforced at first, but eventually the Feds would create an agency to oversee it. In 1927 that agency would become the Food and Drug Administration, and we were off to the races.
Alcohol is, depending on how you’re feeling, both a food and a drug. It would logic, then, that the FDA would have some oversight of alcohol. Thing is, we already had a system in place for booze. The early US government may not have seen fit to regulate meat packing plants or the tonics and elixirs of itinerant salesmen, but (as covered in the intro article) they were sure regulating alcohol! Since it was the only product controlled like that, the founding fathers did not create a whole new bureaucracy for it, and instead folded it into the Department of the Treasury.
When Prohibition ended, it might have made sense to transfer some control of alcohol to the FDA. The 1935 Federal Alcohol Administration Act, however, kept much of the power with Treasury. The act led to the formation of the Federal Alcohol Administration and the Alcohol Tax Unit, which became the Bureau of Alcohol, Tobacco and Firearms (ATF), and it stayed that way into the new century. The Homeland Security Act of 2001 split the taxation and enforcement duties between the Treasury (through the new Tax and Trade Bureau) and Justice (ATF), but still, no FDA.[i]
All this background leads us to one simple fact: alcohol has no nutrition labels. Those labels, after all, are a creature of the FDA. Since alcohol is outside the FDA’s purview, and nutrition is outside TTB and ATF’s, the industry has had no problem keeping it that way, which means those three Long Islands you had last night still don’t count towards your daily calories. Congratulations!
This has come to prominence in recent years for two reasons. First, big brewers have begun to think that nutrition labels might not actually be such a bad thing. The makers of Whatever Lite and Something Ultra have long tried to use calorie differences in their battle with heavier craft beers. They think a label on the bottle might be to their advantage. In 2013, TTB issued a rule that producers could put nutrition labels on their bottles if they wanted to (Bud Light will begin doing so in February 2019), but they show no signs of making it mandatory.[ii]
The second reason is that the FDA recently passed a regulation for restaurants that happens to affect alcohol producers as well. Starting in May 2018, chains with 20 or more locations had to start listing calories for all their menu items. After some deliberation, it was decided that alcoholic drinks would be subject to the new rule as well. The liquor industry lobbied for leaving mixers out of it (no dice), and small producers were very keen on generalized labeling—that is, a stout is x calories, no matter the brand. Also no dice.
That last request highlights the most pointed argument against labeling by the industry: it would hurt small producers, because the research and regulatory compliance work required would be expensive. The other argument—one that goes back a long time—is that if you put nutrition labels on booze, people will think that means booze is nutritional.
I can’t say I find either argument compelling. It would cost something for producers to comply with the new regulation, sure, but not that much. Brewers, vintners, and distillers analyze the hell out of what they put in a bottle; I can’t imagine counting calories will break the camel’s back. And if it would, existing food labeling law has a provision exempting small producers from the requirement; I’m sure they could figure out something similar for alcohol. And as to consumers believing that the presence of “nutrition facts” means that your college dorm room’s plastic jug of Vladdy is good for you, well, I’d like to see a study prove that. In 2007 TTB proposed a rule that would have added a facts panel but called it something different, like “alcohol facts” or “serving facts” (they got too bogged down in the details and the politics of it to pull the trigger on that idea). Frankly, I’m not sure the name change is necessary. If we do it for Deep Fried Twinkies, we can do it for alcohol. If only we can figure out which department should make it happen…[iii]
[i] This is a bit of a simplification. For a few decades, there was a real question about whether the FDA actually did have authority over alcohol labeling. The 1906 Food and Drug law did cover alcohol, but the 1935 alcohol law gave control to the ATF. So which was it? The FDA largely deferred to the ATF for a while, until a 1976 court decision affirmed that alcohol labeling was the prerogative of the ATF. See Mary Hancock, Federal Jurisdictional Disputes in the Labeling and Advertising of Malt Beverages. Food, Drug, Cosmetic Law Journal #34 (1979), pg. 271
[ii] Before, that, you had to get specific TTB permission to do so. Alcohol label rules are intense, and a topic I’ll talk more about soon.
[iii] More reading:
- https://www.wsj.com/articles/what-cocktails-have-calories-new-rules-will-show-how-many-1521813600
- https://www.huffingtonpost.com/entry/alcohol-nutritional-information_us_596cb1ebe4b03389bb18ca6b
- https://www.foodpolitics.com/2010/11/nutrition-labeling-of-wine-beer-and-spirits-a-regulatory-morass/
- http://lawprofessors.typepad.com/healthlawprof_blog/2011/01/why-dont-beer-wine-and-alcohol-have-nutrition-fact-labels.html
In the Spirit of the Law 
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