ATF Ruling 97-1
The Bureau of Alcohol, Tobacco and Firearms (ATF) has been asked to interpret the phrase "a trace amount of citric acid" in section 5.23(a) (3), as amended by T.D. ATF 369, 60 FR 67326 (December 29, 1995). That Treasury decision implemented section 528 of Public Law 104-52, 109 Stat. 468 (November 19, 1995).
The standard of identity for vodka was promulgated in 1949, in T.D. 5707, 1949-2 C.B. 252. The standard for vodka provided that it was neutral spirits distilled from any material at or above 190 proof, reduced to not more than 110 proof and not less than 80 proof and, after such reduction in proof, so treated as to be without distinctive character, aroma, or taste. Although no explicit definition of the term "distinctive" could be found in the hearing record, the testimony indicates that vodka is to be as tasteless and odorless as possible.
In 1956, Revenue Ruling 56-98, 1956-1 C.B. 811, concluded that citric acid and sugar were not considered to be flavoring ingredients which would materially affect the taste of vodka or change its basic character so long as the sugar did not exceed two-tenths of 1 percent and citric acid was only added in a "trace amount." The ruling did not quantify "trace amount." Nevertheless, it is clear that citric acid usage was intended as a smoothing agent to correct objectionable tastes which might result from such things as the water used in reducing the proof, the charcoal used in distillation, or the glass in which packaged. Available information indicates that the use of citric acid from this time until the 1980's was in the range of approximately 49 to 150 parts per million (ppm). However, starting in the 1980's, the quantity of citric acid added to vodka increased significantly.
In response to the increased usage of citric acid in vodka, ATF initiated rulemaking to determine whether or not a specific limitation should be established in order to preserve the standard of identify for vodka. The extensive rulemaking history of the citric acid issue is set forth in detail in T.D. ATF-360, 59 FR 67216, (December 29, 1994). In that Treasury decision, ATF determined that a maximum level of citric acid addition of 300 ppm (300 milligrams per liter) was proper before the product became a flavored vodka.
Subsequently, Public Law 104-52, 109 Stat. 468 (November 19, 1995) was enacted. Section 528 of Public Law 104-52 states that, "(n)o part of any appropriation made available in this Act shall be used to implement Bureau of Alcohol, Tobacco and Firearms Ruling T.D. ATF-360; Re: Notice Nos. 782, 780, 91F009P." This language also appears in ATF's current appropriation, which is set forth in Public Law 104-208 (110 Stat. 3009, September 30, 1996).
The Conference Report accompanying Public Law 104-52, H.R. Rep. 104-291, Oct. 20, 1995, provides as follows: "Although conferees agree with the Senate proposal that no part of any appropriation made available in this Act shall be used to implement the ATF and Treasury decision ATF-360 [59 FR 67216, 12/29/94], which limited the amount of citric acid that could be added to vodka to 300 parts per million (PPM), the conferees recognize the complex nature of the various issues surrounding any standard of identity determination with respect to the labeling of vodka. Therefore, the ATF is directed to conduct a study, in consultation with industry members, to determine whether a more reasonable industry standard can be established that better balances the interests of the consumer, the industry, and the Government."
As a result of Public Law 104-52, ATF amended 27 CFR 5.23(a) (3) to remove the 300 ppm citric acid limitation requirement set by T.D. ATF-360, pending further study. During the pendency of such study, ATF continued to allow the use of up to 1,000 ppm of citric acid in vodka without changing its designation as "vodka," subject to the applicable formula requirements.
As a result of the enactment of section 528 of Public Law 104-52, ATF has carefully considered the views of industry members and trade associations to determine whether a more reasonable industry standard can be established that better balance the interests of the consumer, the industry, and to Government.
ATF has historically taken the position that the addition of citric acid in vodka to a level where it could be detected by the consumer would contribute a distinctive character to the product in violation of the standard identity. In other words, ATF has used the approach known as "threshold testing." This type of testing determines the point at which a taste tester can first detect a difference in taste when compared to reference sample. Since vodka is a product which by definition is without distinctive taste, ATF believes the point at which a taste tester first detects any difference in taste (in this case, citric acid) is the maximum allowable amount of that ingredient. The difference in taste need not be attributable by the taste tester to a specific ingredient, i.e., citric acid, that can be identified as such.
In contrast, industry members believe that threshold testing to determine a minimum level at which citric acid becomes detectable has no relevance to the distinctiveness requirements of the vodka standard of identity. In testing conducted by industry, consumers were asked whether samples of vodka containing up to 1,000 ppm of citric acid had a "distinctive character, aroma, taste, or color." A statistically significant number of participants did not identify the vodka samples containing up to 1,000 ppm of citric acid as having a distinctive character or taste. Therefore, industry believes that the presence of citric acid at levels up to 1,000 ppm in vodka is appropriate.
ATF has always believed that its statutory mandate to protect consumers is best served by adhering as closely as possible to the standard of identity for vodka. This belief has resulted in a series of tests and analysis spanning several years in an attempt to determine the level at which citric acid becomes detectable in vodka. ATF has now re-examined this issue in light of the Congressional mandate "to determine whether a more reasonable industry rather than a particular scientific standard, can be established that better balances the interests of the consumer, the industry, and the Government." By referring to an industry standard rather than a particular scientific standard, the conference report focused on the current industry-wide usage of citric acid in vodka. The information available on the use of citric acid in vodka affords ATF a basis for determining its current industry-wide usage.
The actual presence of critic acid in vodka has not raised any consumer health or safety issues since being introduced in vodka production in 1956, nor has it resulted in any known consumer deception. Moreover, consumers have been purchasing vodka which contains citric acid in varying ranges of up to approximately 1,000 ppm for more than a decade without any complaints being received by ATF. Based on all of the above, ATF has therefore concluded that a level of up to 1,000 ppm citric acid is an industry standard that will continue to maintain the current standard of identity for vodka, which has been followed for well over a decade, while meeting ATF's statutory mandate to protect consumers.
Held, A "trace amount" of citric acid within the meaning of 27 C.F.R. 5.23(a) (3) shall be no more than 1,000 ppm.
27 U.S.C. 205; 27 CFR 5.23(a) (3)