Texas Register
(30 TexReg 1557).
Prior to this amendment, subsection (a) of the rule required labels on
all malt beverages to state the place where the beverage had been bottled.
Because of the growing complexity of malt beverage distribution systems, compliance
with this rule had become unduly and unnecessarily burdensome and expensive.
Further, the requirement compelled malt beverage producers to create labels
unique to Texas. Subsection (a) was amended to allow the bottler's principal
place of business to be shown in lieu of the place of bottling. This amendment
allows for simpler labeling of product manufactured in multiple locations
and conforms Texas regulation to the federal and national standard, thereby,
removing unnecessary impediments to commerce in this area.
A new subsection (d) was added to the rule. This subsection articulates
the right of the commission to reject labels that are confusing or misleading
even if those labels are otherwise in compliance with the rule.
The Coors Brewing Company, the Wholesale Beer Distributors of Texas, and
the National Association of Beverage Importers commented in favor of the rule.
The Gambrinus Company and Anheuser-Busch commented in favor of the amendments
to subsection (a) of the rule, but were opposed to the addition of subsection
(d). These commenters suggested that subsection (d) was an unnecessarily duplicative
statement of the commission's broad authority to ban deceptive or misleading
labels, particularly as that authority is expressed in the commission's rule §45.82(a)(1)
and (5). Accordingly, the addition of subsection (d) would serve to distract
from the central purpose of the rule and inject an element of ambiguity into
an otherwise clear rule.
The commission disagreed with these comments. It is true that the commission
has the authority, pursuant to §108.01 of the Alcoholic Beverage Code
and the commission's rule §45.82(a)(1) and (5), to forbid deceptive or
misleading labels. Further, the federal Tax and Trade Bureau exercises the
same authority over malt beverage labels in interstate commerce.
27 C.F.R. §7.25(a).
Accordingly, the addition of subsection (d)
does not inject any new, unusual, or uncertain requirement into the label
approval process. The addition does, however, serve a positive function by
forestalling the argument that labels in compliance with subsections (a),
(b) or (c) of the rule are, therefore, protected from a charge that they are
deceptive or misleading.
This amendment is adopted pursuant to §5.31 of the Alcoholic
Beverage Code, which provides the Texas Alcoholic Beverage Commission with
the authority to prescribe and publish rules necessary to carry out the provisions
of the Alcoholic Beverage Code.
Cross Reference: Sections 101.41 and 101.67 of the Alcoholic Beverage Code
are affected by this amendment.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 20, 2005.
TRD-200502033
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: June 9, 2005
Proposal publication date: March 18, 2005
For further information, please call: (512) 206-3204