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FDA and Gluten-Free Labeling

The FDA finalized regulations governing gluten-free claims for fermented foods. The rule applies to alcoholic beverages that fall within the FDA’s primary labeling jurisdiction. Companies must come into compliance no later than August 13, 2021. The new rule effectively prohibits gluten-free claims on fermented products that were not gluten-free from the start of the production process. But beers made without gluten-containing grain (e.g., beers made from rice) are allowed to use the term gluten-free so long as the manufacturer and product meet certain other requirements under the new regulations.

But, when it comes to distilled products, it’s a different story. The FDA’s position is that, while there is no valid scientific method to test for the presence of gluten in fermented products, there are valid methods to do so in distilled products and for the fact that the distillation process itself can remove all of a substance. As such, distilled spirit products, even those that were made with gluten-containing ingredients, may now make gluten-free claims.

How do these new FDA rules intersect TTB guidance with respect to gluten-free labeling? As of right now, the TTB only allows statements on beer labels like “crafted to remove gluten,” but not “gluten-free.” The FDA rule does not address a statement like “crafted to remove gluten.” But you can see how the two positions are at odds. Moreover, with respect to distilled spirits, the TTB currently does not allow “gluten-free” on distilled spirits labels. We will have to wait and see whether the TTB adopts the FDA’s new position.

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