ATF Ruling 85-1
The Bureau of Alcohol, Tobacco and Firearms has received inquiries regarding the suitability of containers with polyethylene liners as liquor bottles.
Section 5301(a) of Title 26, United States Code, authorizes the Secretary of the Treasury to regulate the kind of containers designed or intended for use in the sale of distilled spirits. Sections 19.11, 194.11, 250.11, and 251.11 of Title 27, Code of Federal Regulations, state the definition of a liquor bottle as:
"A bottle made of glass or earthenware, or of other suitable material approved by the Food and Drug Administration, which has been designed or is intended for use as a container for distilled spirits for sale for beverage purposes and which has been determined by the Director to adequately protect the revenue."
The containers in question are designed in such a manner that the only component that comes in contact with the distilled spirits is a lining made of polyethylene. Hydrogen peroxide may be used to sterilize the lining. Food and Drug Administration regulations provide for the use of polyethylene as a component of articles intended for use in contact with food, including alcoholic beverages, in 21 CFR 177.1520. Hydrogen peroxide is approved as a sterilizing agent for polyethylene food-contact surfaces, including those for alcoholic beverages, under 21 CFR 178.1005.
The Bureau is aware that a proof gain of up to two-tenths of a degree (and a corresponding very small water volume loss) may occur. This slight increase in proof is typical of other non-glass containers and can be minimized by avoiding high storage temperatures, by ensuring uniformity of the wall thickness of the container, and by ensuring market turnover. ATF has concluded that this characteristic poses no jeopardy to the revenue because the taxable commodity, the alcohol, does not travel through the container wall. The quantity of alcohol does not change between the time of bottling and the point of tax determination. Therefore, it has been determined that the use of polyethylene lined containers as liquor bottles provide adequate protection to the excise tax revenue.
In accordance with the requirements imposed by the National Environmental Policy Act, the Bureau recognizes the environmental assessment prepared by the Food and Drug Administration (FDA) on polyethylene used in food contact articles. The conclusion reached by the FDA on pertinent issues was that the polyethylene has a low toxicity and is biodegradable; therefore, the use and disposal would not have a significant environmental impact.
Since the containers using the polyethylene lining are not considered standard liquor bottles, the Bureau is requiring that anyone using these containers apply for approval of the containers as distinctive liquor bottles under 27 CFR Part 19. The containers will also be required to be manufactured in approved standards of fill.
Held, containers with polyethylene lining may be used as containers for distilled spirits, provided:
(1) The polyethylene lining is in compliance with Food and Drug Administration regulations;
(2) Approval has been received for the container as a distinctive liquor bottle; and
(3) The container is manufactured in an approved standard of fill.
27 CFR 19.11, 194.11, 250.11, 251.11