ongress passed the FD&C Act in1938 they did not limit the definition of food to exclude alcoholic beverages and so the debate over the jurisdiction began. The Food Drug and Cosmetic Act of 1938 defines food as “articles used for food or drink for man or other animal.” The BATF clearly has jurisdiction over labels under the 1935 Act, and the FDA believed that they shared jurisdiction with BATF as a result of the 1938 FD&C Act. In 1940, the FDA issued a statement that indicated their position on alcoholic beverages.
While we have indicated that cordials, liqueurs, wine and whiskey are subject to the Act (the FD&C Act), we will continue as in the past to leave to the Federal Alcohol Administration the regulation of the labeling of these alcoholic beverages under the more specific Federal Alcohol Administration Act...we expect to continue our policy of not duplicating the work of the Federal Alcohol Administration.
BATF exerted exclusive control over the approval of the labels of alcoholic beverages for thirty-five years. On October 8, 1974, FDA and BATF entered into a Memorandum of Understanding that confirmed BATF’s primary jurisdiction over alcoholic beverage labels. The Memorandum announced that BATF had adopted ingredient regulations that were in agreement with the FDA. After the comment period, BATF withdrew the proposed regulation. BATF cited the following reasons for withdrawing the ingredient labeling proposal: (1) cost to the industry and the consumer, (2) the content of alcohol is extensively regulated, (3) uniqueness of the process of manufacturing alcohol may make an ingredient list misleading to the consumer, (4) hindrance on international trade negotiations, and (5) only a small segment of the public supports ingredient labeling. These reasons indicate that there was strong industry support against ingredient labeling. In response to BATF’s withdrawal, FDA issued a statement that they would be abandoning the memorandum of understanding and that they would begin to enforce ingredient labeling for alcoholic beverages.
In Brown-Forman Distillers Corp. v. Matthews , the plaintiffs brought a declaratory judgment that the FDA did not have jurisdiction to regulate the labeling of alcoholic beverages. The plaintiffs in this action were eight distillers, one winemaker, the Distilled Spirits Council of the United States (approximately 95% of all United States distillers), and the National Association of Alcoholic Beverage Importers. Although the industry was successful in getting the BATF to rescind the proposal for ingredient labeling, when the FDA attempted to exert its control and require this labeling the industry responded strongly with this action. When the Court in Brown-Forman Distillers considered the issue of jurisdiction they went back to the legislative history of the FD&C Act of 1938 to determine if the word “food” was supposed to include alcoholic beverages. Although there was no discussion directly on point as to how the FD&C Act was to effect the 1935 Act, there was an interesting question that was asked by Congressman Virgil Chapman during the hearings. In this question he made clear that he proposed to amend the bill to “include whiskey and require adequate labeling that would disclose the various ingredients...” The Court properly concluded that this question indicated that Congress did not think that the definition of food, as it was written in the Act, included alcoholic beverages. The House Committee’s report indicated that the definition of food was no more than a clarification of the 1906 Act. It is clear that Congress intended for the BATF to have authority over labeling. The Court next considered the issue of joint jurisdiction finding that Congress intended to place exclusive jurisdiction with the BATF through the 1935 Act. The FD&C Act’s adulteration provisions are the only FDA regulations that still apply to alcoholic beverages. The alcohol industry had escaped the threat of ingredient labeling for the time being.
In 1979, the BATF tried once again to propose regulations of ingredient labeli