Caffeine, Calories, and Coordination: Jurisdictional Developments in Federal Alcohol Regulation

Abstract

Even though alcoholic beverages fall under the definition of “food” in the Federal Food, Drug & Cosmetic Act, the Food and Drug Administration (FDA) does not regulate such beverages’ ingredient and nutrition labeling as it does for other foods. Instead, jurisdiction over alcoholic beverage labeling falls to the Alcohol and Tobacco Tax and Trade Bureau (TTB), a division of the Department of Treasury. The present system of divided jurisdiction is the product of a series of historically contingent events and inter-agency conflicts, and it has caused confusion and friction in this regulatory area for four decades and counting.

This paper explores some of the current issues in alcoholic beverage labeling jurisdiction. It begins by reviewing the history of such jurisdiction, how TTB came to have exclusive control over alcoholic beverage labeling, and the failed attempts to reform the system. It then examines two recent events that have called for cooperation between FDA and TTB: the public outcry over the health hazards of caffeinated alcoholic beverages, and the Patient Protection & Affordable Care Act’s requirement for calorie labeling on restaurant menus. In the former case, the two agencies were able to work together to take concerted action, yet in the latter case they found themselves at odds. This paper examines the differences between the two situations and analyzes some administrative strategies that might be able to encourage more successful cooperation and reduce the risks of regulatory arbitrage.