Proposed Standards of Fill for Malt Beverages
To members of the brewing industry
and others concerned:
1. Section 5(e) of the Federal Alcohol Administration Act prohibits
any distiller, brewer or other producer, wholesaler or importer, directly
or indirectly, from introducing into interstate, or foreign commerce any
distilled spirits, wine or malt beverages which are not bottled, packaged
Hand labeled, in conformity with regulations prescribed by the Secretary
after notice and hearing "with respect to packaging, marketing, branding
and labeling and size and fill of container", as will, prohibit deception
of the consumer with respect to such products or the quantity thereof.
2. In December 1954 after the appearance on the market of the
four-fifths quart bottle and the ten-ounce can, the latter accompanied
by advertising referring to it as the "Big Ten", I received a request,
submitted on behalf of a substantial number of brewers, urging me to
call a public hearing to consider the adoption of standards of fill
for malt beverages pursuant to the above-mentioned statutory authority.
3. Following the receipt of this request and after careful consideration of the advisability of holding a hearing to consider the
adoption of standards of fill for malt beverages, I decided the matter
was of sufficient importance to justify a hearing to consider the
question on its merits. Accordingly, a notice of a hearing to be held
on June 1, 1955, was published in the Federal Register, issue of May 7,
4. Pursuant to the notice a hearing was held on June 1 and 2, 1955,
and then recessed to July 12, 1955 on the request of counsel for one of
the brewers trade organizations to hear additional testimony on the
subject, and was finally concluded on July 13,1955. During the course
of this hearing extensive testimony was received on this question.
5. A great deal of the testimony presented at the hearing by both
proponents and opponents of the proposal to adopt standards of fill
dealt with the economic effects such standards would have on the
brewing industry, and while I am deeply concerned with these economic
considerations I feel that under the statute my decision on this matter
must be based solely on whether or not standards of fill are necessary
to prevent consumer deception.
6. I have carefully reviewed the record and find that the evidence
of consumer deception is inconclusive in light of the long-established
and widespread consumer acceptance of certain odd sizes (the 6, 8 and 11
ounce containers) in various markets of the country, as shown by the
record, which would tend to negate any inference that they are
inherently deceptive. In fact, in some parts of the country one of
these odd sizes (the 11 ounce bottle) might be said to be the standard
container since it outsells all other sizes combined.
7. I have also reached the conclusion that any abuses in the
marketing of the so-called odd size containers may be prevented by a
stringent enforcement of the advertising and labeling provisions of
the malt beverage regulations.
8. In view of these considerations, I have concluded that the
establishment of standards of fill for malt beverages is not warranted
at this time.
9. Inquiries in regard to this industry circular should refer
to the number thereof and the symbols 0:AT:B.
Dwight E. Avis
Director, Alcohol and Tobacco Tax Division