Daryl Orris was stunned and angry last February when he saw the photo on the Web site of the Bureau of Alcohol, Tobacco and Firearms (BATF). The picture included a number of products that appeared to be ice cream, gelatin and frozen novelties, except that they contained alcohol. The BATF said it wanted to ban those "deceptive" products because they are packaged and labeled in a way to appeal to underage drinkers. Smack dab in the middle of the photo was a polyethylene tub of Blend's Brandy Alexander, a product made by The Ice Cream Bar, Inc., Minneapolis, MN, the company of which Orris is president. Blend's is a line of "intoxicating" ice creams, so described not only because of its taste, but because of the addition of liqueurs and liquors. Blend's was not even being sold at that point. After first asking BATF for approval to sell the ice cream in 1993, ICB had only received approval last September, and then only after BATF had forced the company to abandon its original plan to package the innovative product in PE-coated paperboard. ICB had designed, with the help of a supplier, a square carton that had a "distilled spirits look." But BATF, accustomed to approving packaging for 100-proof-plus bottles of distilled spirits--not ice cream with 1.9% to 5% alcohol by volume--told ICB that the solid bleached sulfate carton was a "no-go." ICB had to package in PE tubs. By last winter, Orris was finally negotiating with wholesale liquor distributors and supermarket chains to carry Blend's in their liquor sections, where only "legal" customers could purchase it. Twelve SKUs were planned: nine products in 100-mL tubs and three 10-packs in a bundle pack. As he saw his product image on the Web site, Orris thought that BATF was arguing that Blend's was packaged in such a cool and snappy way so as to lure underage drinkers. Those same kids, the BATF was arguing, might not otherwise have any interest in drinking if Blend's were not available. Which groups will fight BATF's proposal has dazed others, too, leaving them reeling as if they had been whacked over the head by a bottle of booze during a barroom brawl. The proposal combines two bans: one on "misleading" packaging, the other on aggregate packaging or multipacks. A woozy industry is slowly beginning to collect its thoughts and fight back. Its big gripe is that BATF offered no evidence to show that distilled spirits marketers are trying to lure underage drinkers with tricky, duplicitous packaging. "The bureau's proposals are set forth in a factless vacuum, with only speculation and surmise as putative support," sniffs Lynne Omlie, general counsel for the Distilled Spirits Council of the United States. Regulatory agencies typically assemble mountains of data prior to a rulemaking to buttress their contention that new industry controls are needed. These appendices are often voluminous and available for public inspection. BATF has none of this documentation for this rulemaking. "We don't pretend to have scientific evidence that demonstrates an increase in the incidence of underage drinking based on one container over another," admits Bill Foster, the official in charge of the rulemaking. What, then, caused BATF to reverse past policies? Foster says the agency has received an increasing number of complaints, but is unable to quantify that. He cited one recent complaint from a physician whose young children sauntered into a convenience store on their own, purchased a distilled spirits product in a 12-oz can and proceeded to drink it in the back seat of the family car. In explaining the situation, Foster admitted the incident had nothing to do with the product's packaging and everything to do with both the physician's and the retailer's inattention. The application of political pressure is the real force behind the packaging rule. "I hate to say this, but we generally respond to the squeaky wheel," Foster admits. "And these complaints are reaching the top levels in the department." The Treasury Department has jurisdiction over BATF. Trying to gain attention By trying to respond to that political pressure, the Bureau has probably overreached. Manufacturers such as ICB's Orris say they are simply trying to catch the attention of legal-age "Generation-X" consumers. "It's a whole new ballgame out there," Orris says. "Cheerios and Wheaties will have to change their packaging to appeal to that market, too." The problem is, BATF also believes it is a whole new ballgame, one in which the agency can suddenly, without even consulting the "league commissioners" on Capitol Hill, decide to narrow the width of the basepath after a hitter has already headed for first base. Remember, ICB had already obtained BATF approval to market Blend's prior to February 1999. Raymond Byrd, vice president of Mango Bottling, Inc., Cocoa, FL, says the bureau had given his products a total of 21 different approvals over the past five years. "The agency never even told me why Tooters suddenly is a problem," says Byrd. Mango Bottling sells Tooter Lingo Liqueurs and Tooter Liqueurs. They were also featured in the Web photo accompanying the February press release. Pictured first is a chipboard tray of 30 25-mL polystyrene tubes filled with the alcoholic drink. The second image includes separate 50-mL shot-glasses filled with cocktails. Both products are sold only to liquor stores and bars. What it bans The proposed rule has two main parts. First, the agency intends to amend its "standard of fill" rules so that what it calls "aggregate" packaging is illegal. Beer six-packs would remain okay. Second, the bureau proposes to prohibit alcoholic beverage containers that are likely to be confused with containers for other products, particularly non-alcoholic food products, such as ice cream. Clearly, a new policy against what it considers "misleading packaging" could be far broader than a ban on aggregate or multipack packaging. Until now, the BATF has acted against products on a case-by-case basis. For example, a few years ago the BATF forced Canandaigua Brands, Inc., Fairport, NY, to change the packaging of its Cisco Brand line, according to Bob Maxwell of Canandaigua. George Hacker, director of the Alcohol Policies Project for the Center for Science in the Public Interest, a Ralph Nader-affiliated group, is a strong supporter of the proposed rule. He says he has not seen any data that shows underage kids are being enticed into drinking by the products whose packaging the ATF seeks to ban. "But I have heard anecdotes about kids opening their lunch and drinking a bottle of something with alcohol that their mother thought was just fruit juice or soda," he states. Other examples Confused moms aside, Hacker believes that some distilled spirits companies purposefully mix their products with sweet flavors that mask the taste of the alcohol as a way to hook underage drinkers. And the way those products are packaged, including labels, colors and product names, is part and parcel of the effort to introduce kids to their product line. "It is like baiting the hook," he says. In its comments to the bureau, the CSPI cites Bacardi's Breezers and Cherry Berry Cola and Seagram's wine coolers. These products are marketed in paperboard carriers of four or six individual bottles that, Hacker says, look like juice or soda bottles. Neither of the two outer carriers mentions the product has alcohol. And, he claims, both can be found in the refrigerated sections of convenience and liquor stores near non-alcoholic juices from Mistic, Snapple or Nantucket Nectars. Hacker thinks the proposal should extend to the secondary packaging of these kinds of products. "Despite the potential to mislead consumers, the packaging for those products would seem to be unaffected by BATF's proposed rule because the potentially misleading features arise from the names of the products, the label and the packaging, not from the shape or the design of the container itself," Hacker stresses. The CSPI wants the bureau to expand the proposed changes in the regulation to allow focus on these elements of the product packaging that can also influence consumer behavior. Stacy Issacson of Seagram's was unable to get a response to the CSPI comment from a company official. Much like what it alleges is deceptive packaging, the BATF has marshalled no evidence to show why it wants to reverse its decade-old policy of approving aggregate or group packaging. In the past, the packaging has had to meet two requirements. First, the contents has to equal one of BATF's standards of fill (sizes) for distilled spirits and wine: from 50 mL up to 1.75 L. And second, the individual containers have to have appropriate, approved labeling. In the newly proposed rule, the agency said it "recognizes the possibility, if not the likelihood, that retailers will break apart the outer, labeled package and sell the individual non-standard containers, thereby diminishing any likelihood that consumers will be adequately informed about the quantity, identity and quality of the product they purchase." But in the case of the Tooters 25-mL vials, each tube is printed with a government warning label as well as the words: "Not for individual package sale." Bryan Forbes, assistant manager of technology and regulatory affairs at the Flexible Packaging Assn., largely agrees with Daryl Orris that aggregate packaging is a new form of packaging that is hot within the packaging community. FPA believes that the BATF proposal "unintentionally portrays the products produced by FPA-member companies in a negative manner." The FPA thinks a better way to handle the potential tax problem of "broken-up aggregate packs" is via a cooperative effort to improve labeling. Despite complaints from distilled spirits packagers that the proposal is overkill, there isn't much evidence that the industry is mounting much of a political effort to kill the new packaging regulations. Daryl Orris contacted his two senators, Rod Grams (R-MN) and Paul Wellstone (D-MN). Grams wrote to Richard Mascolo, a BATF official, reminding him of ICB's "concerns about the subjective nature of the proposed rule in relation to packaging of the product." But neither Grams nor Wellstone is prepared to make much of a stink. Nor, apparently, is anyone else in Congress. No member of either the House or Senate subcommittee with appropriations responsibility for the BATF asked a question about the packaging ban during the bureau's fiscal year 2000 budget hearings. "That proposal has not gotten on the radar screen up here," confirms Jen Siciliano, the press secretary for the full Senate Appropriations Committee. c
