Trends In The Alcohol Industry And How They Are Regulated – Food and Drugs Law

The alcohol industry is adapting to changing consumption
patterns, and the increased desire among consumers for more
information about what they are drinking. This article will discuss
a couple of trends, and how those trends are regulated.

TRADITIONAL “FOOD” TYPE CLAIMS WITH ALCOHOL

Alcohol is regulated under the Canadian Food and Drugs
Act (FDA) and Food and Drug Regulations (FDR). Among
other things, the FDR prescribe the information that must appear on
the label for an alcoholic beverage including common name,
percentage of alcohol by volume, and ingredients. Generally,
alcohol labels are exempt from displaying a nutrition facts table
but that exempt status is lost in certain circumstances, including
if any claim is made about the energy (calories) or nutrient
contents that are present.

A nutrient content claim is a claim about the presence or
absence of an ingredient in a “food,” which includes
alcohol. The FDR list the nutrient content claims that are
permitted to be made, including acceptable wording (and alternative
wording) for the claim, and the compositional standards required to
make them. For example, “low fat” is a permitted claim.
To make the claim, the food must contain 3g or less of fat per
reference amount and serving of stated size and, if the reference
amount is 30g or 30mL or less, per 50g.

Increasingly, alcohol companies are making nutrient content
claims on their labels, as consumers seek more information about
what they are ingesting. In the past couple of years, hard seltzers
have become extraordinarily popular. According to one source, in
2021, the category accounted for US$8.9 billion in global
sales.¹ No doubt one of the compelling features of many
hard seltzers, including the brands that have dominated the
category, is the calorie content per serving size (usually around
100 calories per serving size), which is often displayed out on the
front label, thereby triggering an obligation to include the
nutrition facts table.

Allowable claims are limited to those listed in the FDR. For
example, carbohydrate and calorie claims are limited. If the
nutrient content claim that you wish to make is not on the list in
the FDR, then it cannot be made. For example, the available
carbohydrate and sugar claims are restricted. There are numerous
other “food” type claims that are now found on alcohol
labels that are also regulated including “organic,”
“gluten free,” “no preservatives,” and
“unsweetened” and any company seeking to make these type
of claims should be mindful of the restrictions on presentation and
composition.

NO AND LOW ALCOHOL ALTERNATIVES

The alcohol industry has also responded to the increasing desire
among consumers for no and low alcohol alternatives. Global sales
of no and low alcohol drinks are surging and the total volume is
forecasted to grow by 31% by 2024.² One of the most
interesting recent market entrants in this burgeoning category from
a regulatory perspective is Corona Canada’s CORONA SUNBREW with
0.0% alcohol and 30% of the daily value of vitamin D per 330mL.
Introduced in the middle of winter in February 2022, the tagline
for the promotion of the new product is SUNSHINE. ANYTIME. and is
described as a nod to the fact that Canadians experience about 8
months of winter.

In Canada, the FDR regulates the fortification of foods with
vitamins, minerals, and amino acids, including which foods are
required and permitted to be fortified. For example, “partly
skimmed milk” (or “partially skimmed milk”) is a
standardized food, which requires fortification with vitamins A and
D in certain amounts. Examples of foods that are permitted to be
fortified include: breakfast cereals (thiamine, niacin, vitamin B6,
folic acid, pantothenic acid, magnesium, iron, zinc); fruit nectars
and vegetable drinks (vitamin C) and certain fruit flavoured drinks
(vitamin C, mandatory and folic acid, thiamine, iron, potassium,
voluntary). If a food is not included among on the list of food
permitted to be fortified, it is not permitted to be sold.

However, under the FDR, it is possible to obtain either
Temporary Market Authorization (TMA) or Interim Market
Authorization (IMA) to sell food that does not comply with the FDR.
TMA is available in circumstances where non-compliant food is
permitted to be sold so that Health Canada can gather information
to determine whether an amendment to the FDR should be made. IMA
allows the sale of a non-compliant food while an amendment to the
FDR is being processed.

On its website, Health Canada maintains a list of food that have
received TMA letters including “beverages, beverage mixes and
concentrates.” According to the list, on May 25, 2021, Labatt
Brewing Company Limited obtained two TMA Letters from Health Canada
in connection with the addition of 6µg and 1µg,
respectively, of Vitamin D in 330mL of the beverage. The letters
expire December 31, 2022. According to the press release announcing
CORONA SUNBREW, the product was two years in development.

Given the projected market growth, novel offerings of no and low
alcohol beverages by brands will only likely continue and add to
what we have already seen with non-alcoholic alternative to
spirits, wine, and beer.

Footnotes

1.
https://www.grandviewresearch.com/industry-analysis/hard-seltzer-market

2.
https://www.theiwsr.com/wp-content/uploads/IWSR_No-and-Low-Alcohol-Gains-Share-Within-Total-Beverage-Alcohol-2021.pdf

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