Mr. Richard A. Mascolo
Chief, Regulations Division
Bureau of Alcohol, Tobacco and Firearms
P.O. Box 50221
Washington, D.C. 20091-0221


VIA FACSIMILE: 202/927-8602 (if sending by fax)

RE: Notice No. 872, Prohibition of Certain Alcohol Beverage Containers and Standards of Fill for Distilled Spirits and Wine (98R-452P)

Dear Mr. Mascolo:

The (name of your organization) supports the intent of the proposal by the Bureau of Alcohol, Tobacco and Firearms(BATF) to amend Title 27, Code of Federal Regulations Part 7, Parts 4, 5, and 7, to clarify the standards of fill for distilled spirits and wine, in order to prohibit alcohol beverage containers that are likely to be confused with containers for other, non-alcoholic beverages.

However, we believe that the proposed rule(s) do(es) not sufficiently address several other existing packaging practices that also may confuse consumers. Therefore, we urge BATF to modify the proposed rule(s) to conform with the following suggested text: (italics represent our proposed additions):

"Any container....that, by virtue of the material from which it is composed, or by its shape, color, label, name of product, packaging, or design, or that by its ordinary and customary use is likely to mislead the consumer as to the character of the product, is prohibited. Such containers that are likely to be identified or perceived by consumers as conveying a non-alcohol product will be considered misleading, unless the director determines that the information on the label adequately dispel any misleading impression."

(Organization name) shares BATF's concerns about underage drinking and its potentially disastrous consequences and is pleased that BATF has undertaken efforts to address the issue. We are, therefore, extremely concerned that an alcoholic beverage can be named "Cherry Berry Cola." The dictionary defines "cola" as "a carbonated soft drink flavored with an extract from kola nuts,"and defines "soft drink" as "a nonalcoholic beverage." Any action that BATF takes to revise regulations to prevent consumers from being mislead by packaging MUST address this kind of label and prevent similar ones from being approved.

Because of concerns about this misleading and inaccurate label, in addition to making the proposed changes in the regulations, we request that BATF immediately rescind label approval of Bacardi & Company's relatively new product, "Cherry Berry Cola." This product is a "flavored beer," or malt beverage product. It comes in a standard brown glass bottle, similar to those used for soft drinks and for beer and is packaged in brightly colored cardboard 4-packs.

On its face, the "Cherry Berry Cola" is deceptive because it suggests to consumers that the bottle contains a soft drink product rather than an alcoholic beverage. This potential deception is compounded by the absence on the cardboard carton of any indication that the product contains alcohol. The carton also lacks the federally mandated warning language required on alcoholic-beverage containers. Although the bottles contain both the federal warning and the designation that the beverage is a "flavored beer" and a "flavored malt beverage," that information may be obscured by the carton.

Other products in the same line also have a potentially deceptive names, including "Bahama Mama" and "Purple People Eater: Very Berry Grape Flavored." Those names can easily be confused by consumers with the plethora on non-alcoholic fruit beverages on the market. The absence of information on the colorful, attractive cartons that would identify the products as alcoholic increases the likelihood of consumer deception.

In the last two years, a number of new "hard cider" products have come onto the market, and are now widely sold in grocery, convenience and liquor stores. These products are generally packaged in standard glass bottles similar to those routinely used for soft drinks and beers. We have observed two problems with the packaging of those products that could mislead consumers about the nature of their contents. These problems become particularly troublesome when the products are place on shelves next to "sparkling cider," a beverage that has long been a choice for people who choose not to drink alcohol.

First, some of the cider products were not identified as "hard" cider, but only as "cider" (or in the case of the "Woodhill" brand as "draft cider.") Only a very careful inspection of the container labels reveals that the bottles contain alcohol, resulting in potential consumer confusion about the contents.

Second, the 4- or 6- pack cardboard cartons in which the ciders are displayed and sold lack adequate consumer information, obscure the federally mandated warning label that appears on the product bottles and closely resemble packages in which soft drinks are sold. An examination of the carton provides no indication that the products contain alcohol. The cartons themselves do not contain warning notices. Thus, casual consumers could easily be deceived as to the nature of the product they were purchasing.

The Seagram Company has several new "cooler" products that are composed of fruit-flavored malt beverages. As with the Bacardi "Breezer" line, their cardboard packaging bears no indication of alcohol content. The product names (such as "Wild Berry Cherry") resemble those of popular, non-alcoholic fruit juices sold by Mystic, Snapple, or Nantucket Nectars. Both the alcoholic and the non-alcoholic products were found side by side in the refrigerated section of two convenience and three liquor stores visited by the Center for Science in the Public Interest in the Washington, D.C. area.

Despite the potential to mislead consumers, the packaging for those products mentioned above would seem to be unaffected by BATF's proposed rule because the potentially misleading features arise from the names of the products, the label, and the packaging and not from the shape or the design of the container itself.

Accordingly, we suggest that BATF expand the proposed changes in the regulation to allow focus on these elements of the product packaging that can also influence consumer behavior. In particular, we recommend that the rule specifically include consideration of the name of the product, the labeling of the product, and the nature of its external packaging (such as a cardboard 4-pack or 6-pack), as well as the overall design and appearance, in the determination of whether a product has the potential to mislead consumers as to the nature of its contents.

Finally, we suggest to the Bureau two additional reasons to be concerned about the products we have cited reasons which strengthen the case for a broader definition of potentially deceptive features of containers 1) The brightly colored packaging and the choice of names that may be confused with soft drinks or juice drinks seem to appeal to young people, including those under the age of twenty-one and; 2) because these products are not prominently identified as containing alcohol, store clerks may also be confused and not recognize the package as alcoholic. Such errors can result in an even greater number of illegal underage sales of alcohol than now occur.

Sincerely,
(Organization signature)