Petition to BATF on Alcohol Warning Labels

PETITION TO IMPROVE THE LEGIBILITY, CLARITY, AND NOTICEABILITY OF HEALTH WARNINGS REQUIRED BY THE ALCOHOLIC BEVERAGE LABELING ACT OF 1988

Pursuant to 27 CFR § 70.701(c), United States Senator Robert C. Byrd, United States Congressman John Conyers, Jr., United States Congresswoman Lucille Roybal-Allard, United States Congressman Zach Wamp, The National Council on Alcoholism and Drug Dependence, the Center for Science in the Public Interest, and 118 other public health, consumer, anti-drug, religious and child protective organizations¹ (hereinafter "Petitioners") submit this petition to the Bureau of Alcohol, Tobacco, and Firearms (BATF), seeking rulemaking to improve the placement, design, and appearance of the congressionally mandated health warning notice on all alcoholic beverage containers sold in the United States. Petitioners request rulemaking to amend 27 CFR §16. Such modifications will make the labels more noticeable, more effective, and will help insure that the labels on alcoholic-beverage containers meet the standards for the warning statement as originally set out by Congress.

Since the implementation (in November 1989) of the Alcoholic Beverage Labeling Act of 1988, alcohol producers have been required to include a 42-word health warning message on containers of alcoholic beverages sold in the United States (USC 27, Sec 215(a)).

That Act provides at Sec. 215(b) that the warning statement be "located in a conspicuous and prominent place on the container of such beverage," and that the statement "shall appear on a contrasting background."

Pursuant to the Act, the Bureau of Alcohol, Tobacco and Firearms adopted regulations (27 CFR §16) that expand upon and define the requirements for the display of the warning statement. Those regulations provide at §16.22 that the statement be "readily legible under ordinary conditions, and such statement shall be on a contrasting background." Furthermore, at §16.21 the regulations require that the statement shall be "separate and apart from all other information." In both the Act and in 27 CFR §16.21 the warning statement is spelled out using all upper-case letters for the phrase "GOVERNMENT WARNING," and a combination of upper- and lower-case letters for the body of the warning.

BATF has permitted many alcohol producers to affix warnings that are difficult to notice and to read, diminishing consumer awareness and understanding of the warnings. (See Appendix 1 for examples)

Furthermore, the mandated warning label sometimes appears vertically on product containers, and the warning message often appears on a background color that obscures its presence. In every example we have seen, the entire text of the warning, in addition to the introductory phrase, "Government Warning," appears in all upper-case letters, making it more difficult to read. The labels currently approved by BATF fail to uphold the standards of the statute or even a common sense reading of the regulations, fail to attract consumer attention, and fail to provide the mandated information in a form reasonably expected to have significant lasting impact.

Moreover, the regulations governing the current labels also fail to follow the lessons of scientific research about factors that make such labels noticeable and effective. According to the Department of Health and Human Service's 9th Special Report to the U.S. Congress on Alcohol and Health (1997), the "modest effects of the alcohol warning labels may result from the use of labels that fail to follow established principles of effective warning design."²

Warning labels can be a critical element in consumer education about the potential risks of alcohol consumption, particularly at a time when the alcoholic-beverage industry's public relations efforts are trumpeting the possible "health benefits" of alcohol consumption. A requirement for more effective labels is particularly timely in light of data from the Centers for Disease Control that suggest that, since 1991, pregnant women are consuming alcohol more frequently and in greater quantities.³ According to the researchers, that increase in consumption may reflect widespread media reports of possible benefits of moderate alcohol consumption. Women who drink during pregnancy put their offspring at risk for potential fetal alcohol syndrome and other growth and behavioral abnormalities.

In this context it is worth noting that the staff of the Federal Trade Commission pointed out in its 1981 report on tobacco warning labels that evaluating a warning's effectiveness goes beyond its noticeability. "An effective warning is one that permits consumers to recall and consider its message spontaneously and consciously at the time a purchasing decision is made."⁴ The increase in alcohol consumption by pregnant women suggests the declining effectiveness of the current warning label. BATF's recent decision to permit new labels on wine bottles that may suggest there are "health benefits" to drinking could increase drinking by pregnant women if the CDC researchers cited above are correct. In this context, it is imperative that BATF "refresh" the appearance of the current warning to improve consumer recall of the dangers to women who drink during pregnancy or while attempting to conceive.

Substantial human-factors research on warning labels points to the need for improved health warning-statement design on alcoholic-beverage containers. K.R. Laughery demonstrated that warnings printed (1) on the front label, rather than elsewhere, those printed (2) horizontally, and those printed (3) with a red pictorial warning are noticed most quickly.⁵ Such design elements contrast markedly with many current warnings on alcoholic-beverage containers, which are placed in inconspicuous places (such as on neck rings), printed in all upper-case letters, situated vertically along the edge of a back label, or superimposed on a poorly contrasting background. (See Appendix 1 for examples)

In 1989, then-Senator Al Gore, discussing the implementation of the Act on the floor of the United States Senate, noted that "labels are a proven, effective means for consumers to become informed about a product and any unique characteristics associated with the product." He also called on the Secretary of the Treasury to ensure that the warning would be readily legible and conspicuously and prominently placed.

Since 1989, numerous studies have examined the impact of the current alcohol warning labels and the impact of various designs of container warning labels (See Appendix 2). In essence, those studies concluded that the warnings had been noticed by consumers, but that their design has made them less effective than they might be to communicate important information about some risks of alcohol consumption. In support of this petition we attach a list of some of the relevant research on the subject.

In order to improve the effectiveness of the Congressionally mandated alcohol warning label and improve public health and safety, petitioners request that BATF undertake rulemaking to incorporate the following changes in regulations concerning the implementation of the Alcoholic Beverage Labeling Act of 1988.

I. BATF should require that the government health warning be clear and conspicuous, appear in a prominent place on the front label of the container, and be printed horizontally.

Currently, many alcohol producers undermine the effectiveness of the warning by positioning it vertically on the margin of the label. Such placement makes the label difficult to read when the container is placed on a shelf, and impossible to read without spilling the contents once the container has been opened. Too often, the warning appears crowded and is embedded in the surrounding information, making it hard to locate and decipher. Research by Craig Andrews, et. al.,⁶ found that warnings that contain fewer characters per inch, occupy a larger area on the label, and appear less embedded in surrounding information tend to be noticed more readily by study subjects.⁷ Other researchers emphasize that for maximal effectiveness the warning information should be easy to locate and should appear in the "same relative position on all labels."⁸

Laughery's research confirmed that horizontal label messages are "significantly more noticeable than warnings printed vertically."⁹

BATF's adoption of the instant proposal would help implement the now-neglected statutory requirement that the warning message be "located in a conspicuous and prominent place on the container of such beverage," as well as give a common sense application to the existing language of the regulations that the warning shall be "separate and apart from all other information."

II. BATF should require that the government warning label be highly visible, be printed in red or black type on a white background, and be surrounded by a lined border.

Human factors research on those items which make labels noticeable and effective demonstrates the need for warnings to stand out from their background in order to be effective. This research was utilized by the Food and Drug Administration in its requirements for nutrition labels pursuant to the Nutrition Labeling and Education Act (P.L. 101-535), The research suggests three elements that would dramatically improve consumer awareness of the alcohol warning label: (1) placement on the front of the container; (2) a clear, lined border surrounding the label; and (3) text in a highly contrasting color.

Bettman et. al. found that graphic devices such as boxes help consumers recognize and process a warning message.¹⁰

Laughery et. al., found that color helps enormously to increase awareness of warning labels; in fact, the higher the contrast between text and background, the more likely consumers are to notice them. A Department of Health and Human Services review of health warning label research supported Laughery's conclusions and found that "with regard to format, studies indicate that the most effective labels are those which are printed in large letters and contrasting colors..."¹¹

Finally, BATF adoption of this standard for red or black print on a white background would give meaning to the language of both the statute and the regulations that the warning message appear "on a contrasting background." Current BATF practice allows messages in small black type to appear against dark blue and green backgrounds -- surely not the intention of the authors of the statute.

III. Require that the first two words of the statement (government warning) appear in capital letters and bold face type that is at least 15% larger than the remaining text of the warning. The text of the remaining portion of the warning statement should be in upper and lower case lettering. BATF should require a particular type font be used to maximize legibility.

A second analysis by Laughery identified three factors that were significant predictors of the time required by consumers to notice the existence of warning labels. This analysis found that the degree to which the phrase "GOVERNMENT WARNING" stood out from the rest of the label was a significant predictor of the consumer response time.¹² The other factors identified were more subjective: absence of label "clutter" and "noticeability of the label as a whole."

In this context we reiterate that both the statute and the regulations in their description of the required warning statement depict it as follows:

GOVERNMENT WARNING:

(1) According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects.

(2) Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery, and may cause health problems.

In both cases the words "Government Warning" appear in all upper-case lettering, while the text of the warning appears -- in contrast -- in both upper and lower-case lettering. The regulations themselves require that the phrase "Government Warning"appear in capital letters (§16.22(a)(2)) -- perhaps assuming that the text would then be set-off in both upper and lower case letters. However, BATF has interpreted its rules in practice to allow labels in which the entire warning appears in upper-case lettering -- thus defeating the manifest intention of the original legislation, and making the warning harder to read.

IV. Require that the warning labels contain a red pictorial device or icon that is a triangle with an exclamation mark inside.

"One of the most potent factors in increasing the likelihood that a piece of information will be spontaneously retrieved is novelty. Hundreds of studies have demonstrated that any technique that increases an item's novelty enhances subsequent recall of that item."¹³

Several studies have shown that the inclusion of an icon or pictorial element substantially heightens consumer recognition of a warning label.¹⁴ In studies of the way consumer eye-movements track warning labels, Laughery specifically studied a triangular icon with an exclamation mark inside it and found that this icon produced significantly faster response times than warnings without the icon.¹⁵ (See Appendix 3 for example of the complete label as we recommend it appear)

It has been ten years since the alcohol warning label requirement went into effect. Although consumers quickly became more aware of the information contained in the government warning, the label's impact has been compromised from the start by design standards that reduce, rather than ensure, its effectiveness.

The original Act required the Secretary of the Treasury to "consult and coordinate the health awareness efforts of the labeling requirements of this subchapter with the Surgeon General of the United States."¹⁶

We believe that the time is ripe for needed improvements. We urge BATF to consult with the Office of the Surgeon General about the current status of the health awareness efforts of the labeling requirements and institute rulemaking that will ultimately provide American consumers with warning messages they will notice and be able to read, remember and heed.

1. Addiction Resource Center , African-American Family Services, Alabama Alcohol and Drug Abuse Counselors Association, Alabama Citizen Action Program, Alabama Council on Substance Abuse, Alcohol Services (Syracuse, NY), Alcohol Research Information Service (Lansing, MI), Alliance for Recovery, American Academy of Pediatrics, American Academy of Health Care Providers in the Addictive Disorders, American College of Nurse-Midwives, American College of Preventive Medicine, American Dance Therapy Association, American Medical Association, American Medical Student Association, American Medical Women's Association, American Public Health Association, American School Health Association, American Society of Addiction Medicine, The Arc of the United States, ASPIRA Association, Break Free Outpatient (Hollywood, FL), Bucks County (PA) Council on Alcoholism and Drug Dependence, ‘Cause Children Count Coalition, CalPartners Coalition, Central Nebraska Council on Alcoholism, Chances for Indiana Youth, Charlotte-Mecklenburg (NC) Fighting Back Program, Child Welfare League of America, Christian Coalition of Arkansas, Clarian Health (Indianapolis), Coalition for Consumer Health & Safety, Colorado Episcopal Coalition on Alcohol and Drugs, Committee for Children, Community Action Agency of Somerville (Massachusetts), Community Anti-Drug Coalitions of America, Consumer Federation of America, Elks Drug Awareness Program, The Ethics and Religious Liberty Commission of the Southern Baptist Convention, FACE - Truth and Clarity on Alcohol, Faith Partners (Austin, TX), Florida Association of Alcohol and Drug Abuse Counselors, Garcia Consulting (Olympia, WA), Gastineau Human Services Corporation (Alaska), Gordon Recovery Centers, Inc. (Sioux City, IA), Greater Santa Barbara Area Council on Alcoholism and Drug Abuse, The Grove Counseling Center (Longwood, FL), Hands Across Cultures (Espanola, NM), Hazelden Foundation, Hispanic Health Council, Illinois Association for Prevention, Illinois Churches in Action, Independent State Store Union (Pennsylvania), Indiana Coalition to Reduce Underage Drinking, Indiana Counselor’s Association on Alcohol and Drug Abuse, International Commission for the Prevention of Alcoholism and Drug Dependency, Join Together, Latino Council on Alcohol and Tobacco, Lebanon County (Pennsylvania) Drug and Alcohol Prevention Program, Legal Action Center, Los Angeles County Commission on Alcoholism, Los Angeles Friday Night Live, Louisiana Alliance to Prevent Underage Drinking, Marin Institute, Maryland Underage Drinking Prevention Coalition, Michigan Interfaith Council on Alcohol Problems, Mothers Against Drunk Driving, Mothers Against Drunk Driving - Hillsborough County (FL) Chapter, National Association for the Children of Alcoholics, National Association for Public Health Policy , National Association of African Americans for Positive Imagery, National Association of Addiction Treatment Providers, National Association of Alcohol, Drugs and Disability, National Association of Alcoholism and Drug Abuse Counselors, National Association of Drug Court Professionals, National Association of Evangelicals, National Association of Community Health Centers, National Association of Social Workers, National Capital Coalition to Prevent Underage Drinking (DC), National Families in Action, National Hispanic Religious Partnership for Community Health, National Hispanic Medical Association, National Organization on Fetal Alcohol Syndrome (NOFAS), National PTA, National Women’s Christian Temperance Union, Newark Fighting Back Partnership, New Haven Fighting Back, New Mexico Fighting Back, New Visions (Johnstown, PA), North Carolina Initiative to Reduce Underage Drinking, 100 Black Men of America, Inc., Oregon Partnership, Parent Line, Inc. (Lake Oswego, OR), Palvara Tree, Inc., Pennsylvanians Concerned About Alcohol Problems, Phase: Piggy Back, Inc., The Praxis Project (Roanoke, VA), PRIDE, PRIDE of St. Tammany (LA), Pueblo Y Salud (San Fernando, CA), Recovery Center (Monticello, NY), Remove Intoxicated Drivers - USA, Inc., San Antonio Fighting Back of the United Way, South Carolina Department of Alcohol and Other Drug Abuse Services, The Stepping Stones Foundation, Seafield Services (Riverhead, NY), Service Employees International Union, Tangipahoa Alcohol and Drug Abuse Council (LA), Texans Standing Tall, The Trauma Foundation, Treatment Alternatives for Safer Communities (Chicago), University of Alabama - Addiction Recovery Program, United Methodist Church, General Board of Church and Society, The Village (Miami, FL), YMCA - Communities in Prevention North (California), Youth Power (formerly, Just Say No!), Whitman-Walker Clinic, Van Nuys Homeowners Association (CA).

2. Alcohol and Health, Ninth Special Report to the United States Congress from the Secretary of Health and Human Services, June 1997. Emphasis added.

3. Shahul A. Ebrahim, et.al., "Alcohol Consumption by Pregnant Women in the United States During 1988 - 1995," Obstetrics & Gynecology, Vol. 92, No. 2, August 1998.

4. Staff Report on the Cigarette Advertising Investigation, Federal Trade Commission, May, 1981 pp. 4-9.

5. KR Laughery, S I Young, K P Vaubel, and J W Brelsford, Jr., "The Noticeability of Warnings on Alcoholic Beverage Containers," Journal of Public Policy & Marketing, 12(1): 38-56, 1993.

6. See the entire issue of the Journal of Public Policy and Marketing, Spring 1993.

7. JC Andrews, RG Netemeyer and S Durvasula, "The Role of Cognitive Responses as Mediators of Alcohol Warning Label Effects," Journal of Public Policy & Marketing, Spring, 1993, pp. 1-15. See also MB Mazis, LA Morris and JL Swazy, "An evaluation of the alcohol warning label: Initial survey results," pp. 229

8. J.R. Bettman, J.W. Payne, and R. Staelin, Journal of Public Policy and Marketing, Vol. 5, 1988.

9. KR Laughery and JW Brelsford, "Receiver Characteristics in Safety Communications," Proceedings of the Human Factors Society, 35th Annual Meeting, September 2-6, 1991, San Francisco, California.

12. KR Laughery and SL Young, "An eye scan analysis of accessing product warning information," Proceedings of the Human Factors Society, 35th Annual Meeting, September 2-6, 1991.

13. Cohen and Skull, Information Processing Issues Involved in the Communication and Retrieval of Cigarette Warning Information, report prepared for the Federal Trade Commission, November 1980. The authors of the report go on to say: "This is the well known "von Restorff effect" based on the memory research by von Restorff in the 1930's. Hundreds of studies have since replicated this effect, see e.g. Hastie, Schematic Principles in Human Memory, in Higgins, Herman and Zanna (eds), Social Cognition: The Ontario Symposium on Personality and Social Psychology; Wallace, Review of the Historical, Empirical and Theoretical Status of the Von Restorff Phenomenon, 63 Psychological Bulletin, pp 410-24 (1965)," FTC staff report, supra, p. 4-11.